By Ndung’u Wainaina
Promulgation of Constitution of Kenya 2010 was rare achievement by a significant section of steadfast Kenyan people who stood firm on principle and conviction against tyranny, impunity and opacity.
Their painful sacrifice for the democratic constitutional order was about establishing liberty, freedom, transparency and equal opportunity. However, the promise of the Constitution is under severe attack by the Jubilee Administration. It is a regime with unrelenting appetite to curtail human freedoms and civil liberties of the Kenyan people. It is determined to destroy independent constitutional institutions.
After launching massive assault against constitutional commissions, media, civil society and devolution, the increasingly dictatorial unrestraint young Jubilee Administration has trained its eyes on dismembering the independence and integrity of the judiciary and judicial system.
Any leader/ politician respecting and upholding the constitution and rule of law (and not rule by law) cannot afford to be seen to defy the orders of a judiciary perceived by the people to be scrupulously independent and honest in the defence of the constitutional values bonding a nation.
A judiciary that is independent and perceived to be independent within the community protects both itself and the freedoms enshrined in the Constitution from invasion and corrosion. The courts must not only be independent but also effective. Non-compliance with Court orders, even by State officials, diminishes the effectiveness and could lead to collapse of the legal system.
This is the time to test the real source of the strength, legitimacy and capacity of judiciary to execute its potentially awesome powers of defending and protecting the Constitution of a nation.
This is the watershed moment for the Chief Justice Dr. Willy Mutunga to demonstrate firm, courageous and unequivocal leadership in enforcing what the Constitution has asserted in clear accents. It is when the judiciary is under siege or embattled that the pivotal but protective and defensive function of the Chief Justice ( as the head of one of the arms of state) comes to the fore.
A progressive Constitution realized through painful sacrifices and glowing with hallowed provisions cannot be hollow.
Politicization of the judiciary can never be justified regardless of the popularity or goodness of the motive because the main objective of party politics is gain executive and legislative power under the constitution. Therefore seeking to manipulate and draw judiciary into the murky puddle of politicking is both unconstitutional and immoral.