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Sunday, December 5, 2021

Judges should respect Presidency just as we accord them the right title

By Nick Salat

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As both a politician and businessman, I have been involved in litigation in one way or another—I have sued and I have also been sued as the case may be for a person of my standing in society.

In this regard, I can say without fear of contradiction that the recent judgement rendered by the High Court against the BBI process is one of the normal outcomes that any person who has gone through a process of litigation should expect from our courts.

In fact, I must confess that our judiciary has really become bolder and more independent under the presidency of Uhuru Kenyatta more than any other leader. This is good for our democracy because it shows that our institutions of checks and balances have come of age, they are working and can be relied upon to be significantly independent.

Looking at what we now commonly refer to as the “BBI judgement”, I can say that the declarations and orders issued by the High Court are the usual rendering of cases brought before any court, especially a court that is called upon to render a verdict on constitutional matters. I therefore leave the nuts and bolts of the judgement for the critical legal minds to analyse.

However, what got my attention was the casual and demeaning manner in which one of the presiding judges, the Hon. Justice Prof Joel Ngugi, addressed and made references to the person of the President of the Republic of Kenya, His Excellency Uhuru Kenyatta.

As much as the petition that was before the court challenged the role that the President played in the BBI process, the demeanor exhibited by Justice Joel Ngugi when rendering the court’s verdict left no doubt that the judge had a personal issue against the President!  

First and foremost, when referring to the President in the course of rendering the court’s judgement, Justice Ngugi outrightly ridiculed the Office of the President by not giving the holder of that office the official title he deserves.

As a judge of one of the superior courts of Kenya, Justice Ngugi is, certainly, always accorded the respect that comes with the office he holds. The president of the Republic of Kenya, like the learned judge, also holds a respectable office in the Government of the Republic of Kenya and, therefore, also deserves to be accorded the respect that comes with the office irrespective of the veracity of the subject matter in which the person is being mentioned. Hence, as much as President Uhuru Kenyatta’s role in the BBI process was challenged by the petitioners in the in the case, Justice Ngugi had absolutely no reason to “catch feelings” and derogatively refer to the President merely as “Mr Kenyatta” and not, at least, as “President Kenyatta.” 

This spiteful reference to the President merely as “Mr Kenyatta” was totally uncalled for, was in bad faith and exposed the ‘external’ influences in the entire judgement by the High Court. As someone who has unreservedly supported the BBI process, I will never lower the learned judge’s stature by simply referring to him as “Mr Ngugi”, the unfavourable judgement notwithstanding.

At least, as courtesy and good manners demand, I shall always accord Justice Ngugi the respect he deserves by referring to him as “the Hon. Justice Prof Joel Ngugi.” In fact, if I were to address him directly, I would forever address him as “My Lord” because that is the title of respect that he deserves.

And since Justice Ngugi failed the ‘respect test’, the entire judgement against the BBI process has turned out to be nothing but reckless judicial activism. Instead of seeking to bridge the gap between the Judiciary and the Executive arms of our government, the judgement has just widened the rift. As a member of the noble profession who sits in judgement over disputes, Justice Ngugi must be assumed to know better than any layman not to escalate the existing tensions between the Judiciary and the Executive. I, therefore, hope that the learned judge will retrospect on his demeanor towards the person of the President of the Republic of Kenya and make appropriate amends. 

Worst of all, the judgement, in yet another demonstration of reckless judicial activism, purported to lift the protections accorded to the President under Article 143 by issuing a declaration that encourages any Tom, Dick and Harry to bring civil proceedings against the President. This, in my view, was meant to create a scare-crow for the President so that he does not take any further bold steps to unite our country and do all that is necessary to bring prosperity to the people of Kenya.

So, to the five-judge bench that attempted to ‘scare’ and ‘intimidate’ President Uhuru Kenyatta, I tell you, sorry and remind you that the President that you merely referred to as “Mr Kenyatta” is the Commander-in-Chief of the defence forces of the Republic of Kenya and also exercises civilian oversight over the security apparatus that you rely upon for your personal safety. So, don’t expect Mr Kenyatta to be intimidated by the declarations rendered in your judgement. President Kenyatta will do the job which he took an oath to perform without fear or favour.  

Meanwhile, I wish to point out that as much as our judiciary has demonstrated unparalleled boldness and independence during President Uhuru Kenyatta’s tenure, am equally sorry to say that judicial activism is now entrenched in our judiciary and is threatening to eclipse that very independence that we cherish. How?

A look at the judgement against BBI reveals that the judges overstepped their mandate by delving into issues which even the petitioners did not plead! For example, the personal attack on the character of President Kenyatta was not even what the petitioners pleaded for—the judges, acting on their own motion, introduced the character of President Kenyatta in the case and went ahead to ridicule and castigate him without giving him the opportunity to defend himself.   I know for sure that this was a trick adopted by the judges to lure the President into the arena of battle by prompting him to seek the right to be heard in this matter and, by so doing, waiver his protection under Article 143. But President Kenyatta is smart enough—he will not fall into this trap, instead he will follow the right legal channels to vindicate himself with regard to BBI.  

Another issue that caught my attention in this whole saga is the response by Deputy President William Ruto. For a man whose every bone in his body has always been averse to a bold and independent judiciary, it was strange to see him celebrate the judgement and term the judges as ‘patriots’ as the name and person of his boss was called into ridicule!

How on earth could Ruto celebrate when the name of the person whose support he seeks to ascend to the presidency in 2022 is dragged through the mud by activist judges! I dare say that, if you Ruto celebrated and laughed as Uhuru Kenyatta was ridiculed, then you were laughing at yourself. And If I were Ruto, this is the time I would have read Nikolai Gogol’s “Government Inspector” and drawn valuable lessons from it because, all said and done, the BBI judgement had nothing else but everything to do with the DP’s very own character and ambitions. 

My advice to the DP is that the BBI judgement had given him the opportunity to mend fences with the his boss the President and his handshake partner Raila Odinga and, most likely, salvage his chances to be President in 2022. But he failed miserably to take the opportunity—instead he went about celebrating the ridicule that the people he needs most suffered. Hence, Ruto will never salvage anything, not even salvaging himself from his own schemes! That’s my take—Period!         

The Writer is the KANU Secretary General and former MP        

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