Judicial criticism is in line with freedom of expression

By Charles Kanjama

It has always been fashionable to bash the Government. After the introduction of multi-party democracy, it became de rigueur to show reformist credentials by repeatedly and loudly bashing it. The 2003 Narc regime, after happily co-opting several civil society organisations, enjoyed a honeymoon of sorts, which lasted for three months. Then the blood sport of government-bashing returned.

The recent Kenya National Dialogue and Reconciliation Conference organised to review the progress of the Grand Coalition Government has shown something more surprising. That it is now fashionable even for public and State officers to bash the Government. Everyone is happy to declare that everyone else is disrespecting the Constitution. So the Constitution has become a weapon for anyone to use against someone, while no-one takes responsibility. The semantics of our public discourse have thus degenerated into counter-accusations of non-constitutionalism.

Reminds one of the complex, even confusing, German philosopher Friedrich Hegel (1770-1831). Hegel anticipated the revolutionary Karl Marx (1818-1883). He developed the thinking of fellow German philosopher, Immanuel Kant (1724-1804). One of Hegel’s theories was that humans perfect their concepts of reality through a dialectic process.

This involves a dialogue between a thesis, an opposing anti-thesis and a reconciling synthesis.

It implied that truth emerges through a form of triangulation, where one extreme position generates an equally extreme reaction, and the truth eventually emerges as a middle point or combination of the two positions. This theory was the foundation of the dialectic materialism of Marxism. Its main flaw as an explanation of human behaviour was assuming the gravitational forces behind the see-saw effect override human reason.

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This Hegellian triad of thesis-antithesis-synthesis, which several scholars assert was not really Hegel’s philosophy, can easily cause injustice in judicial process. Diligent judges will always caution themselves against the ultimately lazy assumption that the truth must always lie in between the positions of opposing counsel.

Truth, being the conformity between the mind and reality, is objective and can lie anywhere along the spectrum of opposing claims.

Still, I cannot help but have sympathy for the Hegellian triad. At least as a tool for reviewing the events of the past week regarding the warrant of arrest issued against Sudan’s President Al Bashir. The first outraged reaction by Foreign Affairs Minister Moses Wetangula rightly noted the serious implications of the court judgement on foreign policy, but wrongly trashed the ruling as not worthy of obedience.

The second outraged reaction, by some civil society activists, rightly noted the serious implications of contemptuous disregard for court orders, but wrongly attacked Government’s right to criticise court rulings. It manifested a failure to balance between the competing principles of fair comment and judicial respect.

The idea that you cannot publicly comment on a case or express measured and respectful discontent is a mysterious philosophy that does not deserve our respect. The fact is that our new constitutional freedom of expression allows even robust disagreement with court decisions, so long as it does not lead to contempt of court or an attack on the court’s integrity.

Some of the most trenchant criticism of judicial decisions has actually come from fellow judges, including appellate courts and dissenting judges. My favourite judicial put-down was by an English appellate judge who accused his colleague, "He was trying to give an inverted comma a weight which it could not bear... It was like trying to suspend a three-ton truck from a cob-web."

Yes, even humorous judicial criticism is allowed.

—The author is an Advocate of the High Court