It is not reasonable to say that Kenyan judges are a threat to national security

Reforms in Kenya come so slowly and often attended to with so much acrimony that engaging in the reform agenda can be very exasperating. It is understandable therefore when, once in a while, a reform activist gets hot under the collar and becomes intemperate.

That is what my learned friend Ahmed Nassir Abdullahi last Sunday (SN 29.11.2009) in his article headlined All Judges must be shown the door for a new dawn. His opinion was so intemperate that it appeared as if something else, other than judicial reform, had angered the good advocate.

It is not reasonable to say that Kenya’s Judiciary is more of a threat to National Security than Al Shabaab of Somalia. Even poetically, this statement is an extravagant exaggeration of the true position of the judicial question in Kenya.

If the situation of the Judiciary in Kenya is as stated by my learned colleague, I doubt he would still be a practicing lawyer. I know I wouldn’t. I could not stand to spend every day of my life working in an “institution that is so rotten that its stench has assumed a sense of normalcy”. Neither would I feel comfortable taking legal fees from my clients to represent them in court if this country is “without a functional judiciary” and “law and order and the rule of law are almost non-existent”. Because then what would i be promising to secure for my client? Justice? But from where would I be promising to get this justice if I believe it is impossible to obtain it from the Kenyan Judiciary?

It is true that there are many instances when our judicial officers ignore the law and deliberately reach decisions that are not borne by the evidence. But these instances are not anywhere near what can justify the description of Kenya’s Judiciary as “irredeemable”.

Without drama

For very many Kenyans, their cases are not about multi-million shillings transactions and fights with the executive. They come to court about disinheritance, rape, assault, murder, debts, juridical review of decisions of District Commissioner, Law Control Boards etc. And for many of them, they are heard and their cases finalized without much drama. Indeed, Ahmed Nassir appreciates this because after declaring the Judiciary “the greatest, most serious and imminent threat to our national security”, he asks: “Is this alarming?” And he answers “May be to ordinary Kenyans”.

The truth is that the statement by Ahmed Nassir was alarming also to many a practicing lawyer. The lawyer also takes issue with the number of magistrates that are being promoted to the higher echelons of the judiciary. He says there are “too many former magistrates in the High Court and the Court of Appeal”. 

Magistrates in Kenya have undergone the same training as every practicing lawyer and every judge. They attended the same universities as all of us and were taught by the same teachers. Some passed with honours. Many practiced as advocates before electing to join the magistracy.

I know of no good reason why a magistrate who is diligent and competent in the law cannot be promoted to being a judge. Indeed, before this system became popular, the magistracy was very unattractive to good lawyers as it was a dead-end job. I do not think it’s fair that we should begrudge our professional brothers and sisters in the Magistracy a chance to advance their careers if they earn it.

It is not kind to say “what law can an ex-magistrate develop?” It gives the impression that our magistrates are wanting in their legal training and that practicing advocates and judges have a better foundation in the law than the magistrates.  

More cases

On the contrary, we all know far too many lawyers who know no law. And we also know some of them who have become judges. Our concern should be the person and his competence, not whether he worked as a magistrate. 

In fact, the magistracy in Kenya is the backbone of the Judiciary. It handles possibly over ten times more cases than the High Court. Surely, there must exist a few professionals in that institution who make a good case for being elevated to the High Court. 

It has been said by many people for many years that we need more comprehensive judicial reform than we have gotten so far. That remains true and the need for reform in the judiciary remains urgent. However,rationality is the only way effective reforms can be crafted, debated and implemented.