By Peter Wanyama
I have finally read the Supreme Court Wajir judgment. As an expert on the application of law and the Constitution I find the minority judgment of the CJ and Lenaola J to be sound, rational and jurisprudentially sensible. However, the majority judgement is problematic. A thief has admitted that he stole the goat but since the complaint was not raised and pursued before the Chief, the Court after 10 months of deliberation-has allowed the thief to keep the goat ! The High Court which heard both the testimony of the thief and the goat owner ordered the goat to be returned to the rightful owner. This decision was affirmed by 3 judges of the Court of Appeal only for the Supreme Court to order otherwise. People are asking hard questions. At the end of the rule of law do we expect justice or tyranny of the majority. This decision will hurt the Supreme Court many years to come.
Internally , judges lack a collective voice and cant speak out in self interest . They are disorganised, weak, unmethodical , and totally susceptible to executive pressure. JSC , an institution that has a mandate to protect the independence of judges is in tatters. It has zero credibility. We are tired of vapid and threadbare statements from its members regarding the independence of judges. They are partly the source of the problem. Judges are appointed in the most opaque manner. There is too much influence peddling and all manner of dirty things at JSC. Undoubtedly, JSC is leading us into another popular situation where politicians will push for the dismantling of judicial structure and fresh vetting of judges. I am not even discussing the Supreme Court. It is a very very sad situation when some judges of the Court delay a judgement for nearly 10 months, are accused of corruption and through legal subterfuge and tricks- overturn the very jurisprudence that the Court has set to guide the orderly conduct of elections.
Peter Wanyama, Legal Counsel
