Thread by @MugambiNandi

So, here are my random thoughts on @Kenyajudiciary. The Judiciary is cut from the same fabric as the other arms of government. The people in it come from among us. They are not immune to our national psyche, attitudes, and biases although they have a higher duty to avoid biases.

The result is that malaise, corruption, mediocrity, tribalism, undue influence by religion, and all other biases that you see around, afflict the judiciary too. That is why, for instance, the Court of Appeal threw out Repeal s.162. It’s also the reason Chapter Six is dead.

The Constitution requires that the Bill of Rights be interpreted in a manner that expands rights, not limits them. What did the C of A do in the gay rights case? Influenced mainly by religion, and possibly culture, they limited rights where they should have been expanding them.

The Judiciary had the chance to breath life into Chapter Six; instead they killed it. That’s how candidates facing indictment at the ICC and criminal charges in local courts ended up on the ballots in 2013 & 2017. Chapter Six would have dealt corruption and impunity a fatal blow.

Not giving effect to Chapter Six is the reason Parliament, CoG, County Assemblies, State Corporations and other public offices are full of characters who should, at worst, be in jail, and at best, not involved in public affairs at all, even at the village cattle dip level.

The Judiciary has given a number of strange decisions. The one I find most ridiculous is usurping the power of universities to award degrees. A university publicly disowns a degree, but a judge boldly validates it, thus lowering the bar, to save a politician’s career. Miracles!

I also find it most disturbing when judges shield politicians, fellow judges, governors etc from investigation. I can understand anticipatory bail, and frivolous charges being thrown out, but how do you stop investigations? Curiously, such orders are never available to Wanjiku.

We rarely think of the role the Judiciary plays in attracting or scaring away investors. A major consideration for investors making decisions on where to put their money is how effective & efficient the legal system of a country is. On that, we could do much better.

Not all judicial rulings against govt are sound, bold as they may seem to us. I think the judiciary should not attempt to exercise executive functions by interfering with pure policy decisions eg if gov wants to ban 14 seater matatus, it should.

Now, the Supreme Court. SC was meant to deal with weighty matters of public importance. Instead, they clothed themselves with jurisdiction on everything. They have not produced any coherent jurisprudence. Little wonder there is so much chaos of conflicting judgments all over.

The High Court judgment on BBI and its bold declarations was a breath of fresh air. The judgment was as bold as any one can expect from an independent judiciary. I hope this marks the beginning of a new chapter, and a new direction. Build on what Mumbi J has done to the corrupt.

I think the composition of JSC is very strange. We went overboard on representation. Why should a magistrate be involved in the recruitment, promotion and disciplinary hearings against the CJ, DCJ, and judges? The JSC is packed with judges too. It should be an independent body.

As I said, these are random thoughts.

Ends.