Wednesday, 7 December 2011

A court ruling that Lacked wisdom

A Kenyan High Court ruling made last week spawned a noisy exchange between the executive and the Judiciary. The ruling, in response to an application by an NGO, ordered the government to arrest the Sudanese President, Omar El- Bashir, and hand him over to the ICC “should he visit Kenya.”


The government immediately rejected the ruling thus opening the noisy exchange with the judiciary and some human rights activists. It also opened a diplomatic spat between Kenya and Sudan. The three- pronged spat has raised critical Questions among Kenyan analysts.

The first is; for who does the Kenyan law and the Kenyan Judiciary exist? Whose interests should come first in the dispensation of justice? What does the independence of a judiciary mean? What should it limits be and who defines such limits? What is the role of the Judiciary in the protection of Kenyan interests world-wide? When it come to arbitrating international disputes what should be the guiding yard stick?

In attempt to answer these questions; the legal profession performed dismally. And this could put the entire profession into a state of disrepute in the eyes of Kenyans. A flurry of opinion pieces and editorial in the local press simply exposed the dilemma the ruling put even the legal profession in.

All of them harped on this myth of the independence of the judiciary to justice what was clearly a “political ruling from the bench,” said a local analyst. The “apologists” of the ruling demonstrated clearly the hypocrisy of the legal profession when one of their number stirs public anger.

The Sudanese president responded using arm-twisting tactics. He ordered the Kenyan Ambassador out within 72 hours and recalled its Ambassador in Kenya. Other measures that were not publicly announced included: the expulsion of all Kenyans living and working in Sudan, cessation of trade relations, and the ban of all flights entering or leaving Kenya from Over-flying Sudanese airspace. Clearly Kenya interests were threatened

Sudan is not a leading destination for Kenya’s exports in the world. But is the fifth largest Consumer of Kenyan tea in the world. Tea exports earned Kenya some US1.2 billion in 2010; Sudan consumed some US$250 million of that. That is a market that has to be handed with velvet gloves if: Tea prices are to remain high in the world market and two if Kenyan tea farmers are to remain profitably employed. Barring flights into or out of Kenya from overflying the Sudanese airspace would have a similar effect on the tourism industry especially. Further the interest and safety of the 1,500 Kenyans living in Sudan had to be considered.

It is not clear the how far Sudan would have carried out these threats or if carried out at all or how long they would have been in force in Sudan. However, a system as temperamental as Sudan’s could have put these injurious threats in place-for a while

The short and the long of it all is this: the judge should have considered all these facts before handing out the ruling.  By handing out the ruling oblivious of these facts in effect handed Sudan the diplomatic coup against Kenya that was evident last week.

Strangely the legal profession does not think it is their business to protect Kenyans and Kenya’s interests world-wide. They think that somebody else should. Which brings to mind a case in Britain that the ‘apologists” referred. A magistrate’s court issued a warrant of arrest against a former Israeli Foreign minister, Tzipi Livni, at the request of lawyers representing Palestinian victims of Israeli military operations in Gaza.

 The Israeli Government rejected the ruling. The British government was embarrassed and   amended the law removing a private prosecutor’s freedom to seek a warrant of arrest in exercise of "universal jurisdiction.”  Now private prosecutors must obtain the consent of the director of public prosecutions before the issuing of a warrant of arrest by any court in exercise of "universal jurisdiction.”
The question still remains are judges and Lawyers oblivious of national interests? If that is the case, then do they understand the role of the Law in the first place? By definition; the Law is a social contract between the citizens of a country to protect their common good? This means national interest take precedent over other considerations. In other words the Law cannot supersede national interests.

So was the ruling right? To the extend that it subordinated Kenyan interests to other interests, it was a ruling in error. No wonder Kenyans are reading “politics” in the ruling. According to the Political school of thought, the ruling may have been obtained in a bid to prove to the ICC, where six Kenyans are charged with crimes related to the 2007/08 post-election violence, that Kenya is not ready to Co-operate with it. This would mean that should the Court rule that their cases are admissible, then two of the six, who are presidential candidates in the 2012 election, could be detained. Once detained that would pave the way for some interested candidates to win the Presidency.

 This line of thought is helped by the fact that the judge appear to have depended on political opinion of the two principals in Kenya’s coalition government. The judge is reported to have quoted the opinion of those letters to make his ruling. It is not surprising then that politicians took the Judiciary by the horns.

And the judiciary, specifically the Chief Justice is not helping matters any by jumping into the fray. In fact the Parliament had to advise him to stop jumping into such disputes because they could be taken to the Supreme Court for arbitration and embarrass him. The CJ is the President of the Supreme Court in Kenya.

The ruling lacked in wisdom, say analysts. Wisdom would have obligated the judge to consider the potential for embarrassing the country. He should also put Kenyan interests and not those of ICC or any other provision of the law ahead of Kenyan interests. The promulgation of any law, say analysts, should not be divorced from national wisdom. Probably other subjects, such as Diplomacy, economics and basic accounts should be introduced at the Law school to make judges wiser, say analysts. 

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