KAIKAI'S KICKER: The Judiciary is the last arm of government standing

Miffed by the High Court judgment that declared the position of Chief Administrative Secretary (CAS) unconstitutional, the politician took to social media to attack the judiciary as, "One of the most incompetent, ineffective, corrupt and inept in post-independence Kenya."

The politician went on to accuse the judiciary of enjoying ‘unchecked powers’ and auctioning justice to the highest bidder an insinuation that the judgement against the creation of the unconstitutional position of CAS was a product of some financial transaction. That politician completed his social media rant with a question; "Who will watch the watcher?" I will come to that important question later.

But as the politician raved on against the CAS judgement, a traffic pile-up was building along the road to Damascus with a lawyer known for his constant acidic attacks on the judiciary standing out for being abnormally complimentary.

The lawyer poured rare praise on the Constitution of Kenya 2010 saying it had taught former President Uhuru Kenyatta painful lessons and that the same constitution will teach the current President William Ruto painful lessons. 

For emphasis, the lawyer warned that the constitution will indeed teach anyone who breaks it what he called ‘painful lessons’. To that tweet, the lawyer signed off with the line; “Respecting the dictates of the Constitution is a joyous nationalistic act."

Later on, the lawyer fired back directly at the ranting politician by praising one of the judges in the C-A-S majority decision; the lawyer told the politician; “In the LLB (bachelor of laws) class of 1990, Justice Kanyi Kimondo graduated as number 1 out of 255 graduates." The thread that followed was both cruel and hilarious, but I won’t digress.

The postings by the lawyer and the politician were only a fraction of the social media activity that greeted the high court judgement on the controversial C-A-S position. But the postings contained contrasting but compelling messages.  The politician displayed not just his emotions and biases, but also his veiled wishes and hidden intentions. When he posed, "Who will watch the watcher?"

My thoughts immediately went to the ill-fated Building Bridges Initiative (BBI) document that had so bizarrely proposed to amend the Constitution to introduce the office of a Judiciary Ombudsman with sweeping oversight powers over judges.

The Judiciary Ombudsman, according to the BBI amendments, was supposed to be appointed by the president and approved by the Senate. When the politician spoke of a watcher to watch the watchers, I couldn’t help imagining what a close shave B-B-I was, and how blissfully the politician would have unleashed the B-B-I Ombudsman on the ‘rogue’ C-A-S decision majority judges.  

Here is the underlying lesson to the judiciary here; politicians are highly erratic beings that swing more with dictates of short-term selfish gains than principles of long-term good. Despite their individual and collective imperfections, politicians control two out of the three arms of government.

But at all times and provenly in our case, it is the sober, thoughtful and just mind of an independent judiciary that saves the country. Our nationhood has on numerous occasions relied entirely on the decisions of good judges and good magistrates, and politicians remind us every day that we can’t afford to lose that.

But what greater reminder than that rare convergence of the words of one of your harshest critics, that lawyer, and the words of former Chief Justice David Maraga – a man that lawyer had zero regard for? Here are the two quotes.

From the lawyer “respecting the dictates of the constitution is a joyous nationalistic act,’ and from Chief Justice Emeritus Maraga I quote: “The greatness of any nation lies in its fidelity to the Constitution and adherence to the rule of law.” 

So, when politicians come crying ‘rogue’ and incoherently invoking the principle of separation of powers, remind them there’s only one constitution for all arms of government. You may also be reminded of the words of your most severe critic, who tweeted, “The 2010 constitution is the most powerful antidote to impunity and unchecked executive power.” I may also add, it’s nothing personal. It is just the Constitution.