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!

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.