[Photo/ Ebru TV]
(The writer is an Advocate of the High Court of Kenya.)
It is time to interrogate the philosophical persuasions, leanings and temperament of the Supreme Court judges. I am particularly concerned with the three recent entrants comprising of Hons Isaac Lenaona, Philomena Mwilu and CJ Maraga.
Isaac Lenaona
Justice Lenaola is a properly educated jurist and a strict stickler of procedure. His fidelity to the law is unmistakable. I rank him highly. He's loyal to the law and a disciple of the temple of truth and right. Man to watch.CJ Maraga
You’ll agree with me that CJ Maraga is too predictable a naturalist. Other than the controversial ruling in the murder case of an MP in Eldoret at the height of post-election violence in 2007, with due respect, I know not of any jurisprudence-shaking ruling or judgment made by the CJ to date. I stand corrected.
Philomena MwiluPhilomena Mwilu -- all I know about her is that during her interview for the position of the CJ she openly acknowledged that ‘polygamy should be embraced/permitted as long as the parties to that marriage live in harmony’. I also know that she is fairly well-grounded in law (largely borne out of experience). I don't trust her to chart unbeaten road, though. Her judgments are direct but rarely memorable. Can she possibly break from the mainstream bench and chart her own path? I have my doubts.
JB OJwangThe rest of the judges were in the inaugural Supreme Court Bench and therefore sat in the 2013 presidential petition. Their thinking, ideology, and perspective may not have shifted much within such a short span of time. For instance, JB Ojwang, he of the ‘give-me-a-break’ fame, is a great scholar, and that you cannot take away from him. His judgments are winding, convoluted and best for academic discourse. His judgements are seldom direct and reveal an unacceptable level judicial restraint.
Smokin WanjalaAs for Justice Smokin Wanjala, he is as smoking as Smokin can be if his performance during the CJ interviews is anything to go by. But does he have fire in his judicial belly? Whereas he is extremely brilliant and a jurist of repute, his recusal when the bench become too hot (remember the ‘retirement-age case’) exposed him as lukewarm and a fence-sitter (though, definitely, NOT a gate-keeper). His judicial north is unpredictable and his equilibrium unsteady. He may swing either way.Njoki Ndung'u
Justice Njoki Ndung'u; we have every reason to thank her for spearheading the enactment of the Sexual Offences Act. Her activism in ‘dem days’ is unparalleled. Granted. However, her temperament was greatly exposed when the Supreme was called upon to rule on the ‘retirement age’ case. The least said, the better.
Justice MohamedJustice Mohamed’s civil rights advocacy in Kenya is well-documented. He was in the forefront in fighting the dictatorial Nyayo regime. If not for anything else, his appointment as a High Court Judge was a clear example that after the long night, it more often than not dawns. It was for his liberation struggle and brilliance that he earned himself the coveted seat of a High Court Judge and later his promotion to the SC. During his time as a High Court Judge in Mombasa, he made a very controversial ruling (on whether Kenyan Courts have universal jurisdiction to try the offence of piracy committed in the High Seas) that split the legal fraternity in the middle. The case was however later overturned by the CA. His judicial boldness was later tested during the ‘retirement age’ case. He, like his learned brother Smokin Wanjala, chose the convenient route of recusal.