Our Judiciary is the last bastion of hope for a wounded country

This week we have all been glued on our TV sets as the most intense political battle of our time moved from the precincts of Parliament to the courts.

Every villager is now a jurisprudence expert. We have seen our best and our worst in those corridors. It is difficult to discuss the ongoings in the courts without running afoul of the subjudice rule, but we shall try.

First context setting. When we promulgated a new constitution in 2010, we were full of hope. We had finally solved our governance problem. We had neutered the imperial presidency. We had created a responsible Parliament complete with a lower and upper house. We had devolved, creating new local governments that would be accountable to us. How wrong we were.

Over time we have lost faith in all these institutions. We do not trust the Executive. The Legislature has consistently betrayed us. We have lost hope in the devolved system. The only institution where hope reigns supreme is the Judiciary, and with good reason.

The Judiciary has become the sole locale where the excesses of the other institutions of government can be restrained. Parliament passes bad laws; we know the Judiciary will declare them unconstitutional. The Executive enforces bad policy; we look to the judges to say no. We cannot resolve our political problems; we take these issues to the Judiciary and expect our politics to be sorted.

Unfortunately for the Judiciary, many of the issues they have to resolve attract deep emotions especially those with a political angle. Since every decision has winners and losers, the Judiciary attracts love and revulsion in equal measure with every decision.

Who can forget how the Supreme Court was celebrated by the winning presidential team in 2013 and reviled by the losing team only for the complete opposite passions in 2017 when it nullified the presidential election.

Remember the accolades given to the court by the team currently in government when the courts trashed BBI and the equally vile things said about the courts when they have stopped many government programmes since UDA came into power? Theirs is an impossible task.

There are parts of me that believe we are setting the Judiciary for failure when we take to the courts deeply contested questions with serious political repercussions. Unfortunately, in a country where good sense left the station ages ago, the courts remain the only place to launder all our laundry.

In this scenario, judges must tread carefully, but resolutely, and with Solomonic wisdom. A well-considered and well-informed decision is essential at the end of these disputes. You are setting jurisprudence not just for Kenya but for the world.

But more than this, how the dispute is managed is just as critical. Substantive fairness must be seen. The rules of natural justice must be reasonably applied. But ultimately you must make difficult decisions, knowing someone will throw epithets at you.

To the parties that appear in courts and their esteemed lawyers, I have only one prayer. Let us remember that the Judiciary remains the only hope for a deeply wounded nation. While we must challenge judges where we see mischief, it needs to be based on truth and substance.

To those who throw epithets when they lose, especially for those in power who then make threats on the Judiciary, remember that the ‘mikoras’ of yesterday are the angels we will need to resolve our intractable disputes tomorrow. When the tables turn and we need rescue, do we not want to meet a credible capable Judiciary?

We are a blessed country. When we have disputes, we go, to not to the streets, but to our courts. Not so for many of the countries in this part of the world. It behoves us to be prudent. While we must demand the best from our courts if we so harangue the judges at every point until Kenyans lose faith in the Judiciary, where do we expect them to go when other institutions let them down but to the streets?

As for the judges, you have made us proud, and that is why we keep coming back. Remember, however, it’s nothing personal when we spite you. History will absolve you.

The writer is an advocate of the High Court of Kenya