Is it "Cat out of the Bag" or is it "Cat on a Hot Tin Roof?" - Part II

Well, after a few days of considering what I feel on this issue, I think I have it nailed.  Someone asked me what on earth I meant by "Cat out of the bag" and "Cat on a hot tin roof".  Its simple really.  Cat out of the bag means finally we have a chance to see exactly what direction the Chief Justice's agenda for the new Judiciary is.  Some of us skeptical of him heard so much high praise about how revolutionary and wonderful he would be for the Judiciary and so looked forward to some real change.  Maybe it was therefore easier for him to simply start by something easier, like dresscode.  Nothing much to decide about that.  So now the cat is out of the bag, it will be very liberal and relaxed under our new CJ, so I guess my spaghetti strap tops and peep toes will find a place in his new dress code, I am sure.

Cat on a hot tin roof, is simply reactionary.  The fact that so much hullabaloo was raise concerning the stud prior to his confirmation in office, and after he assumed office, the "young lawyers" kept asking him to clarify that position so he felt compelled by the pressure of it all to react one way or another.  Seeing as he is the purest cleanest Judicial Officer now, it would seem, he could not preach water and drink wine, so instead chose to simply clarify, stud are fine, and so are dreadlocks.

I have given this much thought and have had endless debates with friends and colleagues about this.  What I pen down today is what we would call "A considered opinion".  Our Chief Justice is quoted as saying that if he had to remove the stud, he would rather lose the position of CJ.  Now that he is well and truly in charge, he has to live up to that assertion, as well as live up to the expectation of changing things in the Judiciary.  So his cat is out of the bag, and he is dancing on a hot tin roof.

I must say I am disappointed.  I do not have much faith in the CJ and his magical ability to change the Judiciary in the manner most of us imagine, but I have a lot of faith in the fact that in his position he has the ability to change the course of history as far as Kenya is concerned.  The fact that his first major directive was to hire Advocates to defend the JSC in a matter that is clear (see earlier post on one-third, two-thirds what's the difference) may be put down as inexperience, learning the ropes as it were, since I don't see the ruling of the Court going the JSC way on this one.  However, for him to take to Facebook to issue a statement of the magnitude of this particular one, I think was very misdirected.  Who is his intended audience?  The Advocates who practise before the Court on a daily basis?  The Judicial Officers who will effectively implement the directive?  How were they to find the directive on Facebook?  Then what on earth does he mean it is on his behalf and the Supreme Court?  Which Supreme Court? His Deputy and himself? Then now, does that mean the Judiciary has become "Us" and "Them"? The Supreme Court is some form of higher power court that does not really belong with the rank and file of the Subordinate Courts, High Court and Court of Appeal?

One definitely cannot have his cake and eat it too.  You cannot be the law enforcer, when no law seems applicable to you.  One thing about being a Judicial Officer is that sometimes, you must preach water even if you drink wine, because water must be preached over wine.  That is how you apply the law, not because you agree with all of it, but because it is what it is.  The Court cannot be run on the basis of "what-I-believe-in" or "I-don't-see-what-the-problem-with-that-is"  It is like a building.  The architect can design anything he wants, however he wants, but when it comes to construction, it only works if it is built from the foundation up.  Brick upon brick, so is the law, precept upon precept, precedent upon precedent.  Any attempt to alter this order, can see the whole thing come tumbling down.

So now that the cat is out of the bag, let the dance on the hot tin roof begin!

Is it "Cat out of the Bag" or is it "Cat on a Hot Tin Roof?"

Over the last week, I have received questions on Facebook and Twitter by young lawyers about my position on studs and the dress code in Kenyan courts. To wit can lawyers appear before the Court wearing their studs? Because it is difficult for me to respond to each one of them individually, I wish to clarify my position here.

At this point, I can say that the Judges of the Supreme Court have agreed that we have no issues with anyone appearing before the Supreme Court, wearing their studs. Our position is that as long as officers of the court - both lawyers and judges can appear smart, a stud - or indeed dreadlocks - should not hinder the administration of justice.

At the Supreme Court, we shall not be wearing the colonial wigs and robes, and we shall seek the input of Kenyans on a simple robe that can be worn over a suit, for example. We will encourage the Court of Appeal and the High Court to review the dress code there. We will dialogue with them and the LSK and we expect the public to participate in the debate.

Willy Mutunga,

Chief Justice, Republic of Kenya

President of the Supreme Court

This statement was issued on Facebook by our Chief Justice this week.  He is a man of great insight and high aptitude.  I read his statement on the proposed new dress code and don't know what to make of it.  It is not often I am out of words, so make a note of this, it may not happen again in your life time.  So I leave it to you, are we seeing true colours coming out, or it is simply a case of one having made his bed (with a stud in it) and now having to lie in it.  Take it in whatever sense thou wilst!!

A prophet has no honour in his home town.

This week the Parliamentarians and other Constitutional Office Holders received a salvo from the Taxman.  Pay your taxes in arrears or we send you auctioneers!!  During the pre-referendum era, many politicians tried to encourage the Church leaders to enter an MoU with the Principals to ensure our objections are taken care of once the Constitution is passed.  This is because, they too were objecting to the passing of the Constitution, because they would be taxed.  They had a famous meeting where the President assured them that they would not be taxed until the next time round when elections are held.  Now the Tax-man is calling, and the Principals are quiet.  As the elders said it, "Wametulia kama maji ya mtungi!"

The immediate former Chief Justice is the one who swore the President into office at dusk.  The Chief Justice demoted the then Registrar Christine Meoli and sent her back to the Trenches of the Court Corridors.  He embarked on building himself a glorious court in Milimani, only now for Willy Mutunga to occupy it!  The Ocampo 6 each played a role in the getting into power of the two Principals.  Now they are facing the music alone, with their Principals safely here one dosing away in State House and the other strategising on how to get into power next year!

I'm sorry if I come across today as being cocky, and sounding very "I-told-you-so" like, it is just that sometimes, one has to be reminded, hopefully they will learn from it.  My son is very Curious George cheeky. (If you don't know Curious George, search YouTube to see him in action.)  Every time there was a black out and we would light candles, my son would always keep us busy trying to keep him from the flickering flame.  One day there was a black out so we lit a candle.  He was drawn to the flame.  I kept saying to him, "don't touch, it is hot hot hot" he would back off whilst I was looking at him.  When he thought I was looking away, he put his little finger into the flame.  Well, he got burnt.  I looked back at him.  He had folded his burnt finger into his little fist, and had bit his lower lip and tears were welling up in his eyes.  When I asked what was wrong, he could not even talk, simply shook his head.  Finally he burst into wails and ran into my arms holding his little finger up.  I kissed and made it better, and he calmed down.  Suffice it to say, to date, I have not stopped using candles, but I have never had to tell him to not put his finger in the candle, he knows what it means.

Whenever you warn someone of impending danger, sometimes they do not heed the warning, simply because they know you too well.  They have seen you in your failings and your sufferings, there is no way to convince them that there is any authority behind your warning.  I must admit, one must test every word, lest you be misguided into doing something very foolish.  However, I am now very proud of the stand the Church took.  Since this Constitution was passed, things have been unfolding and the reaction is sometimes shock and disbelief.  One of my life's mantras is "Those who fail to learn from history are duty bound to repeat it."  Whenever we raise objections or make noise, it is because we have looked at other people who had the same glorious promises being made to us made to them.  Now in hindsight, they wish they had left it alone.  The only consolation is it may be a shock to others, but for me, I simply sip my tea and look at it from a distance.  One day, they may learn to listen to my voice.

Again, time to run pick the babies, sorry, big children (the Teacher said to not call them babies so I have to retrain my head to call them children!!)  Have a blessed time y'all

If I had known then what I know now.

Its been a while since I blogged, mainly because I have been engaged in the Nation Building process.  When I was in school the loud mouth I was, I did a lot of public speaking.  One poem I did was "Building the Nation"  It was the story of a driver who's Principal (everyone is using this word these days to mean Boss!) was a Permanent Secretary who drove to all these nice places he could not enter, lovely restaurants he could not eat from and when he was done driving the wonderful vehicle, had none to take him home.  I have been trying to do my bit to make Kenya what I believe it can be, with limited success, but unending unwavering psyche on my part.

I went to County Hall together with other Christian Professionals to articulate our position on the nominations for the office of Chief Justice and Deputy Chief Justice.  Suffice it to say, our opposition to the nominations was not very popular.  In fact, I observed the time taken in cross examining presenters of a differing view was quite long. What bothered me was also the quality of the questions.  Sample this: -
"You object to Dr. Mutunga wearing an earring, and yet your Bishops wear long dresses and large necklaces?"
"You people think Abortion is not right, so whose life is more important, the Mother's or the Child's?"
"Even God tells us in the Bible if God be God serve Him and if Baal be god then serve him, what is wrong if we choose to serve Baal?  In fact, didn't your God also order Hosea to marry a prostitute?"

Now, this coming from Parliamentarians who have been given a presentation on ideology, activism and other concerns we had about the nominees, the tangent it took was very curious.  It seemed like the hangover from the August Referrendum.  The questions had nothing at all to do with what sent us to County Hall.  That was me and building the nation.

I have it firmly set in my mind, that going to parliament turns your brain to mush.  But I also have it firmly set in my mind, that I shall try my best to either get in their myself, or send men and women whose pedigree I well know.  I am fed up with the over-fed over-rich idiots whose arrogance to any view is nauseating.  I am also very fed up with sycophantic bootlickers who only pander to the whims and beckoning of their puppet masters.  I am well and truly fed up with the so-called Christians in parliament, who obviously sleep all through the sermons, only glean from it that which they can misuse.

As a devout practising Christian, I have been accused many times of being intolerant, prejudiced and bigoted.  What I have discovered and the conclusion I have arrived at, is those who level those accusations against me the loudest are themselves more bigoted, more prejudiced and more intolerant than I ever could be.  How else do you explain that not one question that came out of the panel drew from our numerous presentations, but instead focused on passing judgement against the Church as having no "moral authority" to comment on the matters at hand.

I have to go pick the children from school now.  Parting Shot:  Watch out if you are standing lest you too fall. A hand saw cannot cut one way, it must go forwards and be pulled backwards for it to cut.  What does this mean?  If you look at me and think I am misguided, look in the mirror, because the only one misguided is you.

A Chief Justice indeed, but which justice is really chief in Kenyan society?

There is such a ruckus over the selection of the Chief Justice and his deputy.  The nominated Deputy CJ, went to court to try and gag the Law Society of Kenya from issuing political statements, now she is touted as being reformist Number 1!  The Chief Justice nominee, turning up with a stud in his ear that he was instructed by his ancestors to wear.  I wonder what other instructions he receives from his ancestors, and if it is they he always obeys, since he claims any attempt to have his remove it will see him relinquish the post of CJ.

We have been treated to a comedy of horrors, interviews that were more like Gestapo Interrogations than anything.  Humiliation and Embarrassment of the highest order of distinguished men and women in our legal fraternity.  And all for what?  To end up with a Chief Justice who wears a single stud on his left ear, and says if he has to remove it for him to be Chief Justice, well we can keep the job because that stud is too important to him.  Shocking, how much premium he places on the fact that he is to lead a whole arm of government.  If put on the scale, the CJ's job weighs less than a stud!  Yet there are men and women who have devoted their whole career to the dispensation of justice, and yet alas, they were found wanting! (The gospel according to the JSC)

I know, I can rant and rave about it, but one thing I have decided to do, is let this madness run its course.  It seems Kenyans are obsessed with making the wrong decisions under the guise of taking a new direction.  The more incredulous the choice, the more radical and forward thinking it is!  Well, those who don't learn from history are duty bound to repeat it, so I guess the shouts of "ouch!" from other jurisdictions went unheard and unheeded here.  The are labelling all voices of caution or dissent as being "anti-reformist" or being the forces that are corrupt and are afraid of their old ways being exposed.  It is preposterous!  However, one thing I have learned, justice is crucial, for every society.  Play games with it, and what you risk losing is more than you gain of it.  Just a stud?  I wonder what else will be fine by us in our compromise to try exorcise the spirit of "Moism" from our systems.

We have a new Constitution.  Most of the provisions will be given life either in parliament or in the courts.  The new set up of the county assemblies and the bi-cameral parliament will take quite a while to be established.  So guess who will be in charge of giving life and meaning and interpretation to the Constitution? With an Activist Chief Justice, and an Activist cum Reformist Deputy, its only a matter of time before Judicial Activism takes over.  The Chief Justice, who will be the head of the Judicial Service Commission, will be in charge of deciding who is in the Supreme Court, the law making court.  Have you seen some of those looking for Supreme Court Positions?  Njoki Susanna Ndungu, she who has never practised law in the court corridors, and is reknowned for her activism.  Hon Martha Koome, former FIDA Kenya stalwart.  The Supreme Court has a total of 7 judges, if four are guaranteed activists, what hope do we have that we have not just ushered an era where those 7 unelected judges will decide the fate of this land.  It will be a sad day for Kenya, when Judges will decide what law governs Kenyans, rather than parliament, our chosen representatives, but that day is indeed coming.

All I can do now is pray, which is what I am doing for Kenya.  I give up any earthly wisdom on how Kenya's issues can be resolved, and I leave it to God to decide.  Did we leave it too long?  Is all lost?  I leave it at the Potter's Hand, we are but clay.