Mutunga is finally learning: opinions are
fought in the public court: not in the corridors of justice. But is he being
realistic to declare that Kenyans have faith in the judiciary?
Mutunga is right. Kenyans have faith in the
judiciary: Kenyans such as Mutunga, a few judges and the few who remain
confident that things would go in their favour. But what about the rest of
Kenyans? That’s a different ball game.
In the words of Kethi Kilonzo, judicial
decisions are rarely a win/win situation. They cause much joy to one side and
grief to the other in equal measure. This is why it is important that justice
must not only be done but also be seen to be done. Justice being done is for
the consumption of the lawyers. Justice being seen to be done is for the
consumption of the public. A good judiciary gets the two dimensions right.
If there is any perception of partiality on
any side, even the person who is favoured will never trust that the arbitrator
will be fair the next time. That’s the blunt truth. If you favour me because I
am your brother against an opponent you’re not related with; how will I trust
you to be fair in a dispute where you are closer to the other opponent?
Mutunga’s decision was in favour of Jubilee but I can assure him that not even
Jubilee sycophants will be mad enough to believe in his impartiality.
The facts of law are irrelevant here. This
is the court of public opinions. The one that is controlled by the dimension of
wanting “justice to be SEEN to have been done”: one that you cannot argue with.
Let me put it this way, if you favour me today, how sure would I be that you’ll
not favour my opponent tomorrow? It’s only a person whose resolve to defend the
truth that can be trusted by both parties. If you refuse my pleadings for a
favour, there’s a good chance that I will be hoping that next time I am the one
at a disadvantage, you’ll also refuse to hearken to the pleadings of the other
parties.
I put it to Mutunga that his is not an
observation based on facts, but a statement in desperation that it is true.
Public sentiments against the judiciary have been pointing in one direction: NO
CONFIDENCE. The trust that the public had that the judiciary would be the force
to sanitise Kenyan politics has been lost.
There are over 180 election petitions in
court. Have you heard the public speculate on them? No. Why? Because no one
expects much from the judiciary. We are back to where we were in 2007. No one
will trust the judiciary to be a neutral arbitrator. And Mutunga should know
that choices have consequences. He forfeited the chance to become the most
powerful person in Kenya by guiding the country on the path of truth. Instead,
technicalities prevailed.
Would you as a Kenyan seek to resolve your
issues in the courts? That depends on the level of confidence that people have
in the courts. The courts no longer need to worry about accumulation of cases. There
will be no more pileups. The appointment of the CJ had seen cases being filed
surge dramatically.
I put it to Mutunga that those numbers will
reduce dramatically. His only salvation is for him and all supreme judges to
vacate office. He must now become the sacrifice that could be used to buy
confidence for the courts.
The only problem with that is: who appoints
the next CJ? It is the beneficiary of Mutunga’s rulings. So it doesn’t make a
difference whether it is Mutunga or someone else who is at the helm of the
judiciary. Kenyans do not have faith in the judiciary. Kenyans know they can do
nothing about it. Kenyans ACCEPT AND MOVE ON.
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