Thursday, May 27, 2010



By Jerry Okungu

Nairobi, Kenya

May 26, 2010

Dear Honorable judges,

Kenyans have a right to demand answers arising from your judgment this week when you ruled against the inclusion of the Kadhi’s courts in our constitution. They are demanding answers not because you are wrong in your wise judgment because all judicial decisions are supposed to be wise. What they are saying is that way back in 2005, you made a similar ruling under similar circumstances but your pronouncements were the very opposite of what you gave us this week.

In 2005 you told us that it is for the people to look at the proposals in the new constitution and not for the courts to fill in any gaps in them. You subsequently declined our invitation to interpret the clauses for us.

At that time, you told us that only the people of Kenya could invalidate the proposed new constitution by voting No. Why then did you honorable judges accept our invitation this time and chose to intervene in a purely people process? Why didn’t you allow us the same leeway to vote either Yes or No at the impending referendum?

Another thing; the constitution process since 2008 has been driven by Parliament

The 2008 Act of Parliament establishing the process was very clear. It shielded the process from all manner of interferences such as yours. More importantly, Kenyans have for ages clamored for real separation of powers and functions of the three arms of the state. Why then did you honorable judges of vast experience find it convenient to drabble into the constitution process? There must be something special that made you stray into this landmine.

To tell you the truth, most Kenyans know why you made a ruling that could have easily triggered a religious civil war in this country. And I hope to God that you were not driven by a parochial and misguided Christian motive to please your right wing congregations that you were in a position to scuttle the constitution they are bent on derailing.

In a media school in North America, I was taught many years ago that though the press has a right to investigate and bring to public attention all the goings on in any institution of public interest, at times common sense should override the zeal to unearth explosive stories. We were told that if breaking a story would result in civil unrest or trigger a bank’s collapse with serious consequences to the public, then consideration for public good would override press freedom and right to break the story.

Which judge in Kenya does not know that Kenyans are still suffering from their raw nerves since 2007 botched elections?

When we are busy spending billions of tax payers money repairing the damage we caused ourselves after those elections, can any judge that has the interest of this country pass a judgment that has the potential to set Kenyans against Kenyans?

As I write this article, the Kenya National Cohesion Commission is at work. These commissioners are busy trying to bring polarized Kenyan communities together to begin feeling like one people and one nation again. These communities obviously include Christian and Muslim Kenyans. And as they put the pieces together with safeguards never to repeat the disaster of that tragic moment, the TJRC is touring Mt. Elgon and Londiani areas taking statements from those that suffered injustices from fellow Kenyans over the years. All these initiatives are costing us an arm and a leg to say the least. Why would any right thinking judge set Muslims against Christians with a ruling that has no value to Kenyans? And why now when you have been sitting on this case for close to seven years!

Since 1988, many reform minded Kenyans have been tortured, maimed, killed and jailed merely for clamoring for democratic space. In the days of Mwakenya trials, many Kenyans were picked from their homes and smuggled into court houses with special judges to be tried under the cover of darkness and sent to long term prison terms without the benefit of their lawyers after forced confessions. In those dark days when Nyayo Torture Chambers were a dreaded death dungeon, you the same judges now bent on derailing the constitution were sitting in the comforts of your homes sipping wine and dining with your families.

Now that the martyrs of yesteryears have expanded democratic space for you, you now turn around to misuse your judicial “independence” to derail what many Kenyans have suffered for, for almost three decades.

Between 2000 and 2010, the constitution process has gobbled up almost Ks 30billion and by the time we are through with the referendum you are determined to postpone, we shall have spent a tidy Ks 40 billion; enough cash to build a dual carriageway from Mombasa to Nairobi. Yet, you our good judges see nothing wrong in your mischief.

Justice Nyamu, Wendoh and Emukule, if you were driven by selfish interest to derail the constitution in order to postpone the imminent vetting of judges, then Kenyans must pity you. No individual interest can derail a change that its time has come.