Farmers and pastoralists taking time off their daily social and economic activities to cast their votes - Courtesy of the Daily Nation
Am currently reading a book, partly because it is by a
renowned judge, whose inspiring life leaves me in awe, and partly because am
trying to get a South African perspective for my Master’s Thesis. The Book is The Strange Alchemy of Life and Law (2009),
by Justice Albie Sachs, former Judge of the Constitutional Court of South
Africa, and currently a member of the Judges and Magistrates vetting Board in Kenya.
The book gives a moving account of his life prior to being
appointed to the court by president Nelson Mandela, his activities in support of
the ANC, how his life experiences including surviving a near death experience
after being bombed by secret service of the then apartheid government, and how
these greatly influenced his decisions while serving in the highest court in the country – a court
that is respected in Africa beyond.
His decisions, some of which are found as excerpts in the
book focus on how the law can be interpreted for the people’s benefit, to
promote cohesion, to fight racism, sexism and inequality. I strongly recommend a
look at this book, not only for judicial officers – who would of course relate
- but for the legal community and even
beyond to see how the judiciary can assert its role in protecting the
constitution and making it work for the common person.
The book set me thinking. One, I sure hope Judges, when
making very important – life changing decisions – think about these cases
beyond the court room and their offices, and get ahaaaaaah moments, e.g. while in the shower!! How much heart do Kenyan
judicial officers put into their work? Read an array of decisions from the High
Court and Court of Appeal and make your own judgment….
Two, which prompted this note, is with regard to the highly
disputed election date. After months of debate, people have begun interrogating and seriously criticizing
the Decision by the Constitutional and Human Rights Division of the High Court
read by Justice Lenaola. Weighing in on the criticism has been the person of
the Prime Minister calling it “mahakama
bandia” (he has since retracted his statement and reiterated his respect
and confidence in the judiciary as presently constituted).
In a note I made HERE on that decision soon after it came
out, I made it clear that a couple of reasons may have influenced the decision.
A court seeking to cement itself as having a new face, keen on shaking off its dark past, would not want to prove
to the public that it was toothless by making a decision that would have been
immediately overturned through a constitutional amendment. The decision seemed
to opt for giving more time to the political processes (read confusion) to
take their course. The decision stopped parliament from making rush amendments
to the constitution which is a good thing. Time has proven that indeed the
political class led by the two principals President Kibaki and Prime Minister
cannot agree on an election date, and neither can parliament. I view the March
4th 2013 date proposed by the IEBC as further letting and pushing the political
class to agree on this one thing. Clearly instead of doing so (still within
their power as the court recommended) they have instead turned their heat on the
constitutional body, or supported it, depending on the interests.
The Appeal decision is timely. Enough time has been allowed for public debate and political processes, or a lack of them. It is time for the
court to make a decision on this law that works not for the political class but
for the people. I may not be the biggest fan of the person of the Prime
Minister nor his sworn nemesis William Ruto (am impressed by their sudden intercourse of minds on
this issue) and his confused G7 breed, but reasons given by them for an election this year make a lot of sense, for the common mwananchi.
What are people concerned with? Well my grandmother is concerned
about a good maize harvest, my neighbors are concerned about preparations for
exams for their kids, registrations for KCPE & KCSE candidates, small and medium
businesses picking up after the long xmas
break, etc. They care less about an election that so far has proved divisive
and destructive than otherwise.
If the Appeal decision is to consider its important role of
making the law work for the people it will make a decision that says the
following; one, there has been a long and convoluted debate on the election
date enough is enough, two, the people who stand to lose most from a divisive
and destructive process are the people of Kenya, not the politicians (also of Kenya, though i am afraid they often times forget they are), three, the
Judiciary is one of the forces that can influence cohesion and national
integration (as was reflected in the Agenda 4 need for judicial reforms), four,
the courts have the final say on issues of law and here goes our decision finally,
five, the constitution must be protected, and this must be done in such a way
that reflects the fact that it is the people's collective will, and six, the law
as hereby interpreted must be seen to work for the common mwananchi and not interfering with that which Wanjiku holds dear, is our very important role.
It is is never law and then life, it is always life, and then
the law….
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