Pharis Kimaru, writing a commentary in today's Daily Nation (Pick either Mutunga or Barasa, not both) declares, "It is feasible that the court will rule on abortion, gay rights, sex education, sexual harassment and many other hot-button issues." Why is it that everyone assumes that the most controversial socio-political issues in Kenya will revolve around these themes, and not on the relationship between the Government and the citizens of Kenya?
The clergy are opposed to the two nominees because of their perceived stances on abortion, homosexuality and sex-related socio-cultural issues. They do not have a problem with the nominee for the position of DPP perhaps because he has never publicly stated what his position is regarding the prosecution of these issues in courts of law. As it is, his judicial philosophy and his legal interpretation of these issues is unknown. His candidature is being opposed by Yash Pal Ghai, among others, on the grounds of his perceived bias in the manner in which he has prosecuted some of the high and mighty of Kenya. If a respected jurist like Prof Ghai has doubts about the legitimacy of Mr Tobiko's nomination, it remains a mystery why the Church leaders have not taken up his campaign and buttressed it with their input. This obsession with the position the two judiciary nominees may or may not champion in their leadership of the Supreme Court betrays the fact that the church leaders do not appreciate the history of Kenya's Judiciary regarding the issues that have affected Kenyans since Independence.
One reason why not many mourned the resignation of Chief Justice Bernard Chunga in 2003 was his reputation during the dark days of the Nyayo Era. Regardless of the proof that was presented, many respected commentators condemned Chunga, CJ, for his role in the Nyayo Torture Chambers and they welcomed his resignation in the hope that the next Chief Justice would take a mallet and chisel to the citadel of official Executive impunity in the courts of law. Chief Justice Evan Gicheru disappointed many who had welcomed his appointment because he pursued reforms in other non-sexy areas of the administration of justice, such as his reorganisation of the Judiciary, especially the High Court, and the administration changes he brought about to speed up the disposal of cases and the professionalisation of the Judiciary. His decision to create the judiciary training school has not been lauded. One of the candidates for Chief Justice, Kariuki, J, pointed out that the role of this training institution was set to grow in the making of better judges and magistrates. Over the long run, this institution would serve the cause of justice better than any anti-corruption programmes that may be initiated at the instance of the Chief Justice.
The Supreme Court will certainly be called to address the constitutional issues surrounding right to life, sexual minorities, and morality, but it will not deal exclusively with these issues alone. The most significant judgments will revolve around the place of the Government in the protection of the fundamental rights of Kenyans and it is in these areas that Kenyans must take a healthy interest. Other than the constitutional issues surrounding the rights of accused persons and the imposition of penalties such as the death sentence, the Supreme Court will also be called upon to ensure that new rights are protected and that the government is compelled to institute programmes to ensure that they are enjoyed fully by all Kenyans.
For instance, consumer rights have never been constitutionalised in Kenya and the role of the Supreme Court in ensuring that they are protected will be critical, especially, as I expect, the government claims that it does not have the resources or the capacity to protect them or enforce them against third parties such as manufacturers and other commercial interests. The recent sharp rise in the cost of living has affected more Kenyans than by the rate of abortion. The manner in which the oil and energy industry is regulated and managed has had a greater impact on the quality of life of ordinary Kenyans than the moral issues over which the clergy are fulminating.
Privacy, freedom of expression, protection of the right to property, labour relations, environmental rights, and the rights of persons detained, held in custody or imprisoned will have far greater impact that the issues surrounding the right to life or the place of the family in Kenyan society. The role of the Supreme Court in drawing the line between the duty of the government and the obligations of the citizenry will be crucial and the place of the Chief Justice and Deputy Chief Justice will be important. If they are only concerned about the hot-button issues of the culture wars, we are doomed. The failure by even the church to interrogate the stances of the nominees on these issues has robbed Kenyans of insight into the sort of court these two nominees will preside over. Given that it is the Director of Public Prosecutions who will be tasked with ensuring that laws relating to these questions are upheld, their failure to participate effectively in Keriako Tobiko's confirmation hearings shows that they do not seriously care about the bread-and-butter issues affecting Kenyans, instead concentrating on matters that will at best be academic and esoteric.
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