Nairobi — When Pheroze Nowrojee's name came up for Chief Justice -- when Prime Minister Odinga and President Kibaki thought that the process was purely between them -- the media reported that he was rejected on the basis that he was an "activist."
There was no mention of his long experience as a law lecturer, and litigator par excellence.
Now that Dr. Willy Mutunga and Ms. Nancy Baraza have been nominated for Chief Justice and Deputy Chief Justice, the "activist" tag has again arisen, with the implication that this somehow taints them and their abilities to perform the tasks ahead.
This is surprising. For as long as I can remember, in Kenyan parlance, an "activist" is a positive, not a negative! An activist is someone who has a belief system that they care about and stand by; someone who is willing to sacrifice for their beliefs; someone of principle who is willing to stand up and be counted.
One can be an activist in the media, pushing an agenda against corruption or female circumcision, for instance. One can be an activist in government, working to eliminate conspicuous and wasteful spending.
One can be an activist in Parliament, initiating laws that reduce poverty. And one can be an activist in the judiciary, making decisions that protect the weak and marginalised, as envisaged in the Constitution.
Positive change can only come from activists. Indeed, the greatest leaders in the world are easily "activist": From Nelson Mandela championing reconciliation and unity in post-apartheid South Africa; to Martin Luther King marching for racial justice; to Barack Obama pushing for universal health care in the USA; to Mother Theresa working with the poor in India; to Pope John Paul II who took on communism in Eastern Europe.
Their deeds and words made a huge difference in the lives of millions.
In fact, with his "zero tolerance" to corruption position, candidate Kibaki was an activist, drawing massive support because of this. But once that zeal flickered out with the Anglo Leasing scandals, corruption got a new boost and life.
But at some point, somehow, "activist" has taken on a negative sense in some Kenyan circles. Yet the opposite of activist is someone who is a conformist, takes orders, does not challenge authority even when it is wrong, and does what he or she is ordered.
This surely can't be the sort of public officials we are seeking, can it? Whether in the judiciary, civil service, or legislature, we should be seeking women and men of principle who are willing to stand up for what they believe.
It is these principled men and women who can change Kenya for the better, rather than those who willy-nilly bend to power and do what they are told, even when that means oppressing the majority, committing crimes or breaking the law.
This idea of a conformist public servant has hurt us. We have assumed that what is needed to be a "good public servant" is someone who is essentially an "empty debe" to be filled in with orders from above and who will not challenge authority or question it.
And without rigorous challenge, the quality of decision making suffers, and Kenyans do not get the sum of the collective intelligence of their public servants.
What we have then gotten, are public servants whose first loyalty is to power, rather than to principle, or to the Constitution. They have seen their task as doing what those wielding power want, no matter how wrong or ridiculous; and no matter that it could be illegal.
And from this then arise the problems of impunity and tribalism as these are the natural defenses that conformists use.
Let's be clear here: The Judiciary, perhaps more than any other institution, needs men and women of principle loyal first to the constitution and to the people.
The job of a judge is to interpret the law and as any lawyer will tell you, there are often many ways to do that. Hence the two sides in every case. However the basis of that interpretation is crucial. For if the Judge is loyal to the constitution and is pro-people, then the beginnings of a culture and a society that respects rule of law and the people can emerge.
And from that we can get a Kenya governed by law, rather than by the often selfish men that we have had since Independence.