Updated 21 min(s) ago
Chief Justice Willy Mutunga is assuring us that the courts are now a place anyone can go to seek justice.
‘Go to court’ shall no longer be a coded excuse to undermine democracy, or a trap to lure those who would never expect justice from courts whose ‘real owners’ were known. When then Minister for Justice and Constitutional Affairs composed the tune, Go To Court, on December 29, 2007, as the events that would spawn post-election violence unfolded, she understood the double meaning of the line.
Martha Karua knew she was setting up the legal trap at the time to legitimise a disputed presidential election. She knew the power clique she was speaking for owned the courts, and could puppeteer the Bench to do its bidding.
A politically correct Bench, established to do a political hatchet job, could postpone arbitration, knowing justice delayed is justice denied. She knew the wheel of justice rolls slowly, or stalls, when it is opportune.
When then Chief Justice, Evan Gicheru, turned up on December 30, 2007, at nightfall, to swear-in the President, even as an electoral dispute raged and bullets flowered, it was clear who owned the courts.
Gicheru could not have been in Bench gear, complete with wigs and twigs, on a Sunday at sundown. He was on call because he knew who was to be sworn-in at that uncourtly hour.
The defunct Electoral Commission paid a heavy price for the electoral sham. When then ECK chairman Samuel Kivuitu was chaperoned to State House, he found the lawns teeming with shadows of men and women who ‘knew’. The shadows of the foreboding night would haunt the ECK, the Judiciary, and other institutions that made the conspiracy to manipulate the 2007 presidential election possible.
Institutional rotThe Justice Kreigler Commission and the Waki Commission that investigated the conduct of the 2007 elections and post-election violence gave the account of institutional rot in details in their reports of 2008.
If then Chief Justice knew who was to be sworn-in on that old December night, then he could have been party to the conspiracy. If he did not know, but was ordered to dress up for action, then he was not upholding the independence of the Judiciary.
Gicheru has since said he acted to pre-empt the possibility of a power vacuum and a constitutional crisis. But Gicheru has not said why the aggrieved refused to seek justice from ‘his’ court. Perhaps he should say more on this when he hands over to his successor.
Gicheru was caught up in the judicial muddle that further undermined public confidence in the Judiciary. His ‘radical surgery’ of the Judiciary in 2003 did not engender public confidence in the institution he presided over for eight years.
Instead, the Gicheru season of the long knives created compliant judges, even as it nailed those deemed politically discordant.
Then Chief Justice was an appointee of the President, who was keen on retaining power at any cost. And Gicheru was presiding over a Bench that was beholden to the status quo. The Bench would most likely do the bidding of the power elite because whoever pays the piper calls the tune. Now we, the people, shall pay Dr Mutunga.
Then Justice Minister, now a rebound agent of change, was at the centre of the muddle, and even earned a name, ‘Go To Court’, for it.
In January 2008, a cheeky pundit – they are also bandits of the garb and pen – described presidential aspirant, Karua, as the only ‘man’ who had been left standing in the vote catchment around Mt Kenya.
By the gender ‘makeover’ Karua was also the only ‘man’ left standing in the Party of National Unity, whose presidential candidate was then embroiled in a fatal power struggle.
Not that Martha of Gichugu was then above petty biological identity-markers. She was speaking bravely for power, defending the whims of power the best way she knew.
Since no one wanted to seek recourse in a decadent court, the Kenyattaa International Conference Centre became the theatre of wits for political lawyers who believed they understood the undercurrents of what degenerated into post-election violence.
‘Wiper miracle’Karua had Danson Mungatana, her potential presidential running mate in Narc-Kenya, to echo her line. The Minister for Justice, Mutula Kilonzo, showed up to support the Martha plot.
Then, as ODM-Kenya secretary general, whose candidate was not even part of the dispute, Mutula’s night out was ominous. Perhaps heralding the ‘Wiper Miracle’ that saw Kalonzo Musyoka squeeze into the mayhem as Vice-President.
Yet today, not many men who would want to prop up other men to succeed President Kibaki recall Ms Karua’s sacrifice to protect power. For two nights and two days, the now dissenting woman was the only man speaking for President Kibaki, as other men took cover in safer duties to protect power. She was also among the few who had confidence in Gicheru’s court. But she would a year after the 2007 election fiasco lose confidence in the judiciary.
With Mutunga’s promise, ‘Go to court’ should no longer have a hidden meaning.
—Writer (kendo@standardmedia.co.ke) is The Standard’s Managing Editor Quality and Production.
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