Judiciary and Impunity

        Today I faced a sad realization. That the constitution that we so excitedly pinned our hopes to, and voted for in the referendum, may not help us realize the vision of a second liberation. Let me tell you how I reached this heart breaking conclusion.

Talk of the town is about the Syokimau demolitions. Many families have been left homeless and in despair after watching all their years of hard toil reduced to rubble. Homes that remain as dreams for the majority of Kenyans were savagely brought down as we stood silent and stared with horror. In a country which already boasts of having thousands of IDPs, you might have thought there would be a little more respect for housing. At least they should have resettled old IDPs before creating new ones. But I won’t even go into that right now. What I wanted to discuss was the impunity with which the demolitions were carried out.

        I have little doubt that KAA have a genuine case when they say that the parcels of land had once been theirs before it was grabbed. Once upon a time……long long ago. I also do not question their right to repossess property that had been invaded and settled on illegally. What I do have issue with is the total and utter disregard for the law that was exhibited in this demolition exercise.

          Firstly, there was a pending court case on the land in question.. Pray tell why the executive saw it fit to go ahead and initiate the demolition exercise before the court had given its verdict? If these demolitions had occurred with the full sanction of the court, then I would not be so upset. But it reeks of contempt and utter disregard for court process, when a group of individuals throws caution to the wind and acts in a way to signify they do not have to listen to the court’s decision. Who made the cabinet lord and master to our courts? Are we still in the days when the executive could usurp the powers of the judiciary and carry out extrajudicial actions?

         This was one of the most pivotal reasons why the people of Kenya voted overwhelmingly in support of this new constitution. We voted to have a just country where the 3 arms of government were each sovereign and respected each other. We wanted a reprieve from the tyranny of the old days where the government was deemed as being exclusively made up of the president and his buddies whom he had appointed to cabinet. This is the reason why I lined up and cast my vote on that August afternoon. To ensure that never again will the executive run unchecked and do things as they please. This is the reason why I faithfully watched proceedings of appointment of a new CJ. I wanted to see for myself the kind of  man we were appointing to reverse the judicial vehicle out of the muck it was stuck in. We wanted to remove absolute power from the hands of a few individuals and redistribute it to several organs. That is the entire purpose of having three arms of government. We don’t do it because we enjoy seeing all our tax money go into recurrent expenditure, we do it so that the three can keep an eye and correct each other when one goes wrong. It is the only way of stopping the political elite from getting corrupted by absolute power.

          A constitution is basically a way in which we have agreed we want to coexist as a people. It is supposed to guide all of us as we interact with each other, identify with each other, and declare ourselves as being one nation. And the courts have the solemn task of giving direction on how to interpret those articles we weren’t so clear on. The courts must always be respected and what they have to say applies to everyone; right through to the president himself. No where in that document did it state that a minister was above the law. Think of it as a community of neighbors. If my neighbor cannot just roll in and knock my house down today, he shouldn’t be able to do the same tomorrow after I vote for him to provide leadership to the community. It really doesn’t matter how urgent the matter was whether because of security or what not. The law should still have been upheld and the courts ruling heard before any action was taken. It is prudent for every Kenyan to act according to the dictates of the law that we chose to guide and govern us. And the decision of the court shall always bear more weight than the directive of a minister….or his aide. Gone are the days when due process in court was little than mere formality in the face of all powerful ministers. This is a new Kenya. And after the horrors of yesteryear, we chose to change how we are governed.

          I therefore have no information to conclude whom the Syokimau land really belonged. My quarrel is not with repossession of grabbed public land or protection of the airport by the Government. What I do condemn, is their going ahead with the demolition exercise when they knew fully well that there was a continuing court case on the land. The executive should have respected the judiciary enough to let it have its say before reaching a decision as to whether the exercise should be carried out. The cabinet alone isn’t supremely intelligent as to find the opinion of the courts as being irrelevant, all the arms of government have a vote in a true democracy.

        Going through the constitution, the chapter on the bill of rights, article 40, clause 2(a) states quite clearly that

”….. Parliament shall not enact a law that permits the State or any

person—

‘to arbitrarily deprive a person of property of any

description or of any interest in’…..”

Clause 6 states that the above law doesn’t apply to property that has been illegally acquired. Which leads us to the big question, who reserves the right to make the decision on whether the property was illegally acquired or not? Is it not the judiciary? Why then were they sidestepped by the minister in his rush to bring in the bulldozers? This is the genesis of my issue with the Syokimau demolitions. Not the very act of knocking down a structure(painful to watch as that was), but the foul message of blatant disrespect to judicial process it sends. A representation of impunity in all its arrogance and defiance.

         This is the sad state of Kenya over one year after voting in a new constitution. Do you want to know what has changed? …..NOTHING!!! The  elite still wield ungodly powers over the weak, and Kenya is writhing in an orgy of impunity. The executive still gets its way with doing whatever the hell they want while the judiciary purses its lips tightly shut and pretends not to notice a thing. I had harbored hopes that Dr.Mutunga would give Kenya its first true CJ, ready to tenaciously defend his turf against the excesses of the executive, but with each passing day these dreams fade away like morning mist in a scorching desert. The judiciary has not come out to protest over the usurping of its power by cabinet. The men and women of the wig have chosen to turn a blind eye to the suffering of the people of Kenya. To ignore the cry of the oppressed calling for a champion to protect their rights. To leave destitute the very people who sacrifice so much in the name of taxes, so that they may get plump salaries and allowances. Yes, the judiciary in keeping mum about this issue is failing us. And as a dreamer who against all signs and indications fails to give up hope on the vision of a better Kenya, I am marshaling the youth of the republic to stand up and say no to this betrayal by our judges.

           I want to take this opportunity to be the first Kenyan on twitter to put Dr.Mutunga on notice that we are watching him. Just as we followed his interviewing and appointment, so too are we watching his actions(or lack thereof) while in the high seat of judicial power. Do not lead us to believe in you sir, if you know you will fail us in time to come. It is better not to have too high expectations, than to feel the crushing weight of disappointment later on. I believe I speak with the voice of the youth in Kenya, when I beseech the CJ to act with the full extent of powers bequeathed to him by law, to take back control of the judiciary from the executive. Don’t allow the cabinet to quietly get away with this disrespect to the courts. It is your responsibility to defend the judiciary from any jurisdiction breach by the executive. We ask you to do this, and secure the confidence of the Kenyan people in the judiciary, by ensuring its independence. Forget about fancy moves like flying judges and other utopian reforms that put strain on the taxpayer without adding real value to the common mwananchi. We want you to focus on fixing what is really important. Be brave and fight to liberate the third arm of government that has for so long been used as a puppet. Parliament has many weaknesses, but atleast it has the teeth to defend itself from the executive when they try to infringe on its space. Show us your teeth too….as the head of the judiciary. Please sir, don't fail the people of Kenya. And should you feel that you are honestly not up to the job, consider stepping down and letting someone else clean the judicial house. I believe we have dedicated judges who are quite capable of filling the position and have a proven track record when it comes to hearing the cries of the oppressed.