Professor Yash Ghai, the globally acclaimed – and peerless – constitutional scholar and legal wizard, once opined that the Kenya Judiciary isn’t known for any original or landmark jurisprudence. Think of courts in other jurisdictions and transformational rulings come to mind.
In South Africa, the Constitutional Court struck down the death penalty in the 1995 Makwanyane case. In the United States, a unanimous Supreme Court in 1954 struck down racial segregation in public schools in Brown vs Board of Education.
The court ruled that racially separate schools were inherently unequal because they violated the Equal Protection Clause of the Constitution. There’s no equivalent path-breaking ruling in Kenyan courts. However, the erudite Justice Mumbi Ngugi is slowly changing that sad and well-earned indictment.
Let me state the bottom line upfront. Most of Kenya’s judges aren’t scholars of the law. The judiciary hasn’t cultivated a culture of reading among judges. This is largely the legacy of judicial capture in the Kanu era, a long night of tyranny that hasn’t ended in spite of the 2010 Constitution.
Either judicial officers still kowtow to the Executive, or their heads are deeply ensconced in the bosom of corruption cartels. Simply put, Kenyan judges aren’t in love with the law. Who can blame them? It really does not pay to know the law, or strive to be a pioneer jurist. Those who do are punished and professionally ruined.
There’s a reason we like to call judges jurists. Its true most of them aren’t law professors. The last time they saw a real classroom was on the day of graduation from law school.
Still, the law is a living, breathing, and dynamic discipline. It requires constant reading. Otherwise, the mind calcifies and becomes inert. As a law professor, for example, I don’t teach the same course in the previous year with the identical syllabus and textbook year-in-year-out.
New cases come out and textbooks are revised, or new and better ones written. A law professor can’t simply sit on their fanny – although many do – and hope to teach worth a damn. The only constant in law is learning.
Judges who are steeped in corruption, or waiting by the phone for instructions from State House, don’t need to read. They have no time to open a law book, or read a law review article on the most intriguing and breaking jurisprudential developments.
I bet you if you asked how many books, law review articles, or opinions from leading jurisdictions Kenyan judges have read over the past year the answers would appall you.
That’s assuming the responses were honest. Prodigious reading, a clean and clear conscience, and a humane heart are the foundations of a good legal mind. Imagine a soccer player who rarely takes the field to practice. He’s a recipe for injury and disaster on the pitch.
It’s clear some Kenya judges are readers. Justices Joel Ngugi, Mumbi Ngugi, Kathurima M’Inoti, Isaac Lenaola, and George Odunga, among many others, have curious legal minds and read.
Their opinions reflect the fact that the law is a labour of the intellect. They write carefully, but also beautifully. Their legal reasoning is deep and penetrating. Their judgements aren’t lazy, or written on the back of a napkin.
These are Kenya’s legal trailblazers. Of course there are many more on this list. However, my point is that you can tell a good judge by their rulings. Is the ruling pithy, jurisprudentially sound, courageous, or even bold? Was the judge looking over their shoulder? Did the judge do justice?
Justice Mumbi Ngugi is a cut above the rest. She stands tall in the temple of justice. She’s among a small cadre of judges, with justices Odunga and Joel Ngugi, who are exemplars. Unlike others, she doesn’t whine. She’s a judicial icon who puts her head down and barrels forward. Jubilee’s Uhuru Kenyatta has refused, without reason, and in defiance of the Constitution, to elevate her and the others to the Court of Appeal as recommended by the Judicial Service Commission. This is unacceptable. The Chinese say it’s the peacock that raises its head that gets shot. The state is punishing her and her unimpeachable colleagues for seeing far, like a judicial giraffe, and doing the right thing.
Let’s just take a couple of Justice Mumbi Ngugi’s rulings. She boldly pioneered the landmark ruling that governors facing corruption charges cannot exercise their gubernatorial duties for the pendency of the suit. Thanks to the ruling, Governor Ferdinand Waititu of Kiambu County was shown the door.
More recently, she has ruled that property which can’t be explained is the fruit of crime and must be forfeited. If Mr Kenyatta is serious about fighting graft, then Judge Ngugi is a foremost ally. Only lawyers and judges in corrupt cartels detest her. There’s absolutely no reason – zilch – for Mr Kenyatta to hold up her elevation to the Court of Appeal.
Makau Mutua is SUNY Distinguished Professor and Margaret W Wong Professor at Buffalo Law School. He’s Chair of KHRC. @makaumutua.