The Rawal/Tunoi appeal in the Supreme Court was anything but a legal battle

BY SHADRACK MUYESU Someone in Government must be horribly exasperated at the recent turn of events at the Supreme Court. And why shouldn’t they be? When X, a lobbyist, approached one of the top boys at the Court, the script ought to have been very simple, “Ensure we have numbers at both the Supreme Court and the Judicial Service Commission. We shall surely need them.” It must have been easy to charm his victim who is a known rightist. A similar gospel seems to have been preached to Njoki Ndung’u J. As to what exactly X promised her, I remain uncertain. A “Madam Deputy Chief Justice” in this new world of affirmative action, probably. All I know is that the speed at which she “blessed” Kalpana Rawal, then, Deputy CJ with a contentious injunction (at the advice of Ojwang) and the vehemence with which she defended her actions (with the stellar support of Ojwang of course) betrays a motivation far beyond the immaculate conception of law or even friendship. At the center of the politics were Tunoi J. and Kalpana DCJ. Fairly young in the field, I went through law school without encountering a single decent Rawal or Tunoi jurisprudence. I never mentioned my disaffection to anyone though, since I associated it with a lack of initiative on my part rather than the incompetence of the judges. It’s only when a senior in the field confirmed their right leaning preferences that I realized I was right after all. According to him, Rawal’s appointment was actually due to her general standing than it was her seniority in the field. An invaluable asset to the status quo, they had to be protected and if anything, their numbers shored up for the sake of a rainy day hence X, hence the discarded amendment to the JSC Act; hence the Tunoi Tribunal that was in all fairness designed to fail; hence the Government Printer’s refusal to gazette their exit. Though the lower courts consistently thwarted his efforts, our lobbyist must have felt quite awesome thinking about the number of rabbits he was able to pull out of the hat just to keep the “majority decision” dream alive come the next presidential election petition. He drew his final act. Ruthless Pragmatism Being the careful planner that he is, he prepared for every eventuality, including the unlikely scenario that Willy Mutunga would overrule Ndung’u J and bring forward the hearing date for Rawal’s appeal. It never crossed his mind that Mohamed Ibrahim J would jump camp and side with the CJ when the question of the legality of the CJ’s action came up. Simply, there was no way in this life Mohammed Ibrahim (a proven right winger according to him) would rule unfavorably against Rawal. Such was his shock when the matter came up for hearing and Ibrahim distanced himself from Rawal like she was a bad disease. In all sense, he outdid Peter. It’s like they never met never mind he was among the judges on the Supreme Court bench who so infamously, erroneously and prematurely pronounced themselves pro-Rawal in the Nick Salat election petition! I actually sympathize with the good former DCJ. The sudden shift of allegiances, it’s like someone had whispered to Ibrahim that he would become acting CJ instead of Rawal if she lost. Talking of Ibrahim, I bet he is somewhere sipping on something very exotic drink in a self congratulating antic – a routine he will carry through the next one or two weeks. And I do not blame him, surely it’s not so often that fortune smiles so widely upon a single mortal! I actually think that when the bottle runs dry, he’ll address to himself a congratulatory card, which he will autograph then place somewhere conspicuous for the gaze of all and sundry. Who knows, he could even conscript a collage of “Mohammed Ibrahim is CJ” newspaper cuttings which, together with a photo of him in his CJ drape, he’ll meticulously fit in an ivory frame then hang majestically in his living room for his visitors. A bias so obvious For Justices who had spent the better part of the evening justifying their ability to rise above the person and bona fides to consider matters in spite of the overwhelming weight of bias hanging over them, it doesn’t paint a rosy picture that Ndung’u and Ojwang connived to skip their boss’s send off ceremony. While the temperament of Supreme Court judges has often been decried, such bad taste was always directed to the court of appeal. Not to itself! On this day, it was all there for all to see; personal rivalry, disdain for one another and the hand of X. Revisiting the proceedings, the only person that Ojwang seemed to have respect for was Senior Counsel Pheroze Nowrojee on whose submissions, almost word for word, he made his ruling. Otherwise, the rest of his read was spent shuffling between legalese and aiming thinly veiled jibes at Mutunga and the usual punching bag, the Court of Appeal. And when he was done, it was not difficult to notice that he had moved away from the Chief Justice on his left to get closer to Njoki on his right. So much of disaffection that there was almost a Gulf of Eden between him and the CJ! As of Njoki, I almost admired her. In all truth, she has never interrogated the law in her entire four-year tenure as she did that evening. Almost collapsing under the weight of a ruling she didn’t believe in, the good madam stumbled through legalese, hours on end, trying to emphasize her good intentions! How I pray someone would have asked her straight up why she had pushed an urgent matter to a date after the retirement of the CJ. As for the CJ, now retired, and his colleague in JSC, Smokin Wanjala, surely, they were conflicted. The entire bench was conflicted and to argue otherwise was to stretch if not insult the intelligence of the public. I rest!

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