JUSTICE GICHERU NEEDS TO BE FRIENDLY, INTELLECTUAL

THE STANDARD
NAIROBI, KENYA
MARCH 23, 2009
By Dominic Odipo

"We have come to the painful conclusion that Gicheru has had ample time to make his contribution as Chief Justice and it is now time for a new office holder."

When I saw the statement (attributed to the Kenya National Commission on Human Rights chair, Florence Jaoko) in the Press last week, my thoughts raced to some refreshing comments made by former Soviet Union Premier Nikita Khrushchev, during his first tour of England in 1956.

According to an account in Khrushchev Remembers, translated into English by the American journalist, Strobe Talbot, the Soviet leader had just finished a brief tour of the London Tower when he arrived for his official visit at the House of Lords. Here is Khrushchev in his own words:

"When we visited the House of Lords, the chairman (Lord Chancellor) came out to meet us wearing an absolutely comic outfit. He had on a red gown and a red robe and a huge wig. He showed us the seat from which he chaired sessions of the House of Lords. It was nothing but a sack of wool!

"I was astonished that serious men could conduct serious meetings in such silly clothes, surrounded by so much humbug. I couldn’t help smiling as I watched the bizarre theatrical spectacle!"

A bizarre, theatrical spectacle: That is what the leader of then the second most powerful nation on earth thought of some of the proceedings of Britain’s second chamber of Parliament.

Can serious men conduct serious meetings dressed in silly clothes surrounded by so much humbug?

Not according to Khrushchev, then leader of a nation which was the first to put a man into outer space and bring him back alive!

But back to the matter of Chief Justice Evan Gicheru. Why are so many local lawyers’ bodies, including the Law Society of Kenya, calling for his removal?

And what did Jaoko mean when she said that the CJ "has had enough time to make his contribution."

What contribution?

If one were to secretly poll all High Court and Court of Appeal judges, would Gicheru ‘survive’ in the eyes of his peers?

Intellectual depth

A senior judge makes his contribution in a number of ways. Perhaps the most unassailable and most enduring is through the judicial rulings he makes in the line of his work.

If a senior judge makes a landmark ruling, both in terms of subject matter and intellectual depth, it becomes very difficult for fellow members of the Bench to attack or snipe at him. It becomes even more difficult for members of the Bar, lawyers and advocates who argue cases in front of the country’s judges and magistrates, to take him on.

If a senior judge, whether he happens to be the CJ or not, can point at landmark judgments he has made which have been published in Commonwealth law review publications or in international law textbooks, it becomes difficult for other judges and other lawyers to take him on directly. That, in a sense, is probably the best practical and political insurance for a Kenyan judge.

Dominate your peers and the rest of the legal fraternity intellectually and be friendly to all around you, and you will be left to do and say what you will!

Chesoni

If ordinary judges and lawyers, who themselves tend to think they are the cleverest men and women this side of heaven, get the slightest inkling that a peer, colleague or superior may not be their intellectual equal, then all hell breaks loose!

The late Zacchaeus Chesoni, who served as both Chief Justice and chair of the Electoral Commission of Kenya, can serve as a very good example here.

Chesoni said and did all sorts of questionable things, including gambling at local casinos. But not a single serious judge or lawyer ever raised a finger or said a word in public against him.

Chesoni had written and delivered rulings whose intellectual force and depth no lawyer or judge could dispute. Because of his intellectual and judicial confidence, Chesoni was able to interact with other judges easily and convivially. A judge did not need a special appointment to step into his chambers.

Intellectual depth

Not so with Justice Gicheru. To see him, word is that even fellow judges need to make appointments well in advance. And those appointments cannot be put too early in the day as, according to an LSK petition, the CJ may not yet have arrived at his chambers. The CJ is there and yet he is not there.

If Justice Gicheru wants this repeated sniping at his office and himself stopped overnight all he needs to do are two things: Open himself and his chambers up to his fellow judges and senior lawyers and then hear a major case and deliver a landmark judgment that will be quoted in all Commonwealth law review journals.

That is all!