Opening Reflection

Dear Charles Kanjama,

I have followed your reflections on the gathering storm within the Judiciary with sustained interest. They have left me not unconvinced so much as profoundly intrigued. There are moments in the life of institutions when moderation is wisdom and there are moments when moderation becomes an accomplice to decline. I fear ours is the latter. Permit me to explain why through two biblical narratives which, I hope, may speak to us both.

The First Narrative: Matthew 17

The first unfolds in Matthew 17:14–21.

Prior to that episode, Jesus had already entrusted His disciples with authority over unclean spirits. The disciples had confronted ordinary demons before and those demons had yielded. Authority had become familiar. Success had become almost routine.

Then came an extraordinary demon.

While Christ and His chosen three stood upon the mountain of Transfiguration, where eternity briefly pierced history, and heaven kissed the earth, the remaining disciples descended into the valley, only to discover that conventional exorcism was powerless against the day’s demon. They spoke with ordinary voices, uttered familiar commands and invoked familiar authority. Yet nothing happened. The boy remained captive of the demon.

When Jesus descended from the mountain, He did not discover that His disciples lacked authority. He discovered that the enemy confronting them belonged to an altogether different, extraordinary order.

This kind," He said, "cannot be driven out except by prayer and fasting.

Whether one approaches that declaration as theology or metaphor, it contains a truth that transcends exorcism. History periodically produces extraordinary crises that refuse to yield to ordinary solutions (if you like, extraordinary demons that refuse to yield to ordinary exorcism). Every generation eventually encounters a problem that cannot be solved merely by repeating standard solutions with greater enthusiasm. There always comes this kind of problem (if you like, demon).

The Judiciary’s Present Crisis

It seems to me that the Kenyan Judiciary has reached precisely such a moment. The corruption, impunity, patronage and institutional malaise now corroding the administration of justice are no longer isolated blemishes upon an otherwise healthy institution. They have become its atmosphere. They no longer merely visit the temple of justice; they linger in its corridors, whisper in its chambers and increasingly appear to preside over its altar and take permanent residence at its holy of holies.

When decay becomes structural, procedure and convention alone cannot redeem it. One cannot negotiate with gangrene. One cannot persuade termites to respect the architecture they consume. One cannot extinguish a constitutional conflagration with carefully worded press statements, consultative breakfasts and declarations of shared concern.

There are diseases that respond to aspirin and broad-spectrum medication. However, there are also diseases that require surgery and organ or bone marrow transplants.

Extraordinary Remedies

Kenya has confronted debilitating judicial malady before. The Radical Surgery of 2003 was not conceived because ordinary disciplinary mechanisms had succeeded. It was conceived because ordinary disciplinary mechanisms had failed. The Bomas proposal that every judge relinquish office and seek fresh legitimacy did not emerge from constitutional exuberance but from institutional exhaustion. The Vetting of Judges and Magistrates after the Constitution of 2010 likewise represented an extraordinary constitutional acknowledgement that extraordinary institutional decay demanded extraordinary constitutional remedies.

One may quarrel with each of the above historic interventions. However, one cannot honestly deny the diagnosis that gave birth to them. For that reason, I find your continued confidence in conventional principled and restrained engagement difficult to comprehend. There is undeniable nobility in dialogue. There is wisdom in restraint. But virtues carried beyond their proper season become vices. Conciliation eventually becomes appeasement. Appeasement eventually becomes catastrophic, as the world painfully learned just before WW II. Prudence quietly matures into timidity. Institutional loyalty imperceptibly transforms itself into loyalty to institutional failure. As Churchill discovered, there comes a point when feeding the crocodile in the hope of being eaten last ceases to be a strategy.

The Second Analogy: Acts 19

The second analogy is found in Acts 19:13–20. The sons of Sceva were professional exorcists. They possessed the vocabulary of spiritual authority without possessing its substance. Mistaking the name of Jesus for an incantation, they confronted a spirit by invoking "the Jesus whom Paul proclaims." The response remains one of Scripture's most haunting indictments:

Jesus, I know. Paul, I recognise. But who are you?

The humiliation that followed was not merely physical. It was existential. The borrowed authority of the sons of Sceva dissolved the instant it encountered genuine resistance. I sometimes wonder whether that story is less about demons than about attempting to resolve extraordinary problems using ordinary approaches.

Moral Courage and Institutional Duty

Power, including judicial power, has an uncanny ability to distinguish between borrowed conviction and authentic courage. Corruption and impunity do too. Entrenched systems of corruption, impunity and patronage are remarkably discerning. They know the difference between criticism that seeks accommodation and opposition that seeks transformation. They instinctively recognise whether those confronting them have come to rearrange the furniture or to rebuild the house. That, I respectfully suggest, is the predicament confronting those who imagine that the present crisis within our Judiciary can be resolved through conventional principled and restrained engagement or the familiar rituals of communiqués, stakeholder engagements and carefully managed consensus.

There are moments when institutions cease merely to require reform and begin to demand purification. There are moments when history quietly asks every lawyer, every judge and every public intellectual a question from which there is no escape:

When justice herself stood accused in her own temple, where were you?

And I fear that, should the present guardians of judicial impunity remain unchallenged by anything more formidable than polite persuasion, the day may soon come when they answer their critics in words uncannily reminiscent of the demon in Acts:

Martha Karua, we know. Ahmednasir Abdullahi, we recognise. Willy Mutunga, we know. But who are you?

History is seldom kind to those who mistake civility for courage. The law derives its majesty not from the splendour of its language but from the moral courage of those entrusted to defend it. A judiciary does not perish the day judges become corrupt. It begins to perish the day honourable men and women, especially those holding the presidency of the bar, persuade themselves that extraordinary judicial maladies may still be overcome by ordinary means.

Warm regards,
Dr Muthomi Thiankolu, SC.