The Star (Nairobi)

30 June 2012

Kenya: Mutunga Should Not Attend Miguna Book Launch

The lobby group Friends of Raila (Fora) has dismissed as hearsay allegations made against Prime Minister Raila Odinga in Miguna's book.The lobby ... ( Resource: Lobby Group Says Kenyan PM Shouldn't Answer Book Allegations

opinion

According to news reports, Chief Justice Willy Mutunga is scheduled to appear as guest of honour at the launch of controversial Miguna Miguna's book on July 14.

Regardless of where anyone stands on the political divide in Kenya or who they support in the Kibaki succession politics, all Kenyans must be united in loudly telling Chief Justice Mutunga that being a guest of honour at this event is wrong. There are many reasons why this is so. One of the reasons is that the event is not worth the honour and dignity of the person holding the high office he does.

This is because even though theoretically a co-equal branch of government with the legislative and executive branches under the new political dispensation, we have a greater expectation and requirement that our Chief Justice be at all times above politics. This expectation and requirement does not mean that our Chief Justice must be politically aloof or blind to the goings on politically; quite the contrary, he or she must remain informed about the politics of the day lest he or she will not effectively and fairly execute the full responsibilities of the office.

It also doesn't mean that the holder of that office cannot express themselves politically outside of their official role if they must but it does mean if they do so it must be done such it does not evince bias or a tainted judicial mind, let alone even the appearance of impropriety. That is also not to say the Chief Justice cannot allow politics to creep into his judicial philosophy, if it hasn't already.

However, the reason we insist on having only the best among those with sterling credentials and reputation to serve as Chief Justice is because there is an expectation that individuals like that would and must separate themselves from the politics of the day and instead draw from their judicial prowess, if any, knowledge of the law or wisdom and judiciously and fairly apply the law to the facts and render the right verdict on any given issue.

In other words, our Chief Justice and the rest of the judiciary for that matter must always avoid political controversies unless in the context of rendering an opinion in resolving an issue at hand. Indeed, in countries such as the United States, the highest court of the land there has long held and, it is in fact, the case that courts must stay away from deciding "political questions," which means staying away from deciding issues that are strictly political in nature better left to politicians to resolve.

Given the judiciary in Kenya has been nothing but an extension of the presidency for decades until now, we are nonetheless a long way from reaching a point where the courts can leave it up to the legislature and executive branches to resolve issues because they are too political. This is more so the reason why the Chief Justice and the rest of the court must remain above politics even when considering questions that are political in nature.

There cannot be a more flagrant violation of this principle than what the Chief Justice is poised to do and that is being the guest of honor for Miguna in the launching of his book. In fact, this whole thing sounds like a bad joke or publicity stunt neither the Chief Justice nor anyone serious can possibly wish to be a part of. This is because after being unceremoniously booted from the Prime Minister's office as an advisor on coalition affairs, Miguna Miguna promised the world he has an ax to grind by way of a book he now plans to launch in the next two weeks or so.

There is nothing wrong about that at all; Miguna has a right like anyone else to publish anything he wishes to, provided it's not slanderous or otherwise in violation of the law. What is wrong is for the Chief Justice to grace his book launch with his presence, which is not merely Dr. Mutunga who is going to be in attendance, but the office he represents and that is the Supreme Court of Kenya. There is not a single plausible reason the Chief Justice can advance worth exposing his own judgment and the office he holds to ridicule and condemnation.

The Chief Justice was appointed from outside the judiciary specifically because it was believed he will bring the kind of freshness and untainted history to clean the judiciary but that does not mean he has free rein to ignore or tramp traditions and practices that have made judiciaries across the globe the venerable institutions they are and chief among that is simply staying above petty things such as lowering oneself to be used as a prop in launching a book by someone as controversial as Miguna. The right thing for the Chief Justice to do is simply not attend this event if he wants to remain highly regarded as the head of our judiciary.

Samuel Omwenga is a lawyer and political commentator in the United States.

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