If courts are seats of justice, why do we feel unsafe before its officials?

One time my phone accidentally rang when I was in court pleading for atrocities against Mau Mau freedom fighters to be investigated for compensation by the Truth Justice and Reconciliation Commission.

“Your honour,” I said doing my best to put it off. “I am sorry. I apologise.” “Get out of my court!” the lady judge thundered.

I humbly walked out feeling as if I had detonated a bomb in court and asking myself: ‘Is this what courts of justice are meant to be?’ and — ‘Is this the Judiciary we went to detention, prison and exile for?’

I have been through Kenyan courts countless times. It is only when I watched Judge Ekaterina Trendafilova of the International Criminal Court that I realised judges can be civil, friendly, kind, caring and even humane.

But most Kenyan judges run their courts as if they are jails or classrooms — where officers in charge are harsh, bullish, arbitrary and dictatorial.

When I was young, I most desired freedom and justice and loathed injustice and tyranny. I understood society cannot live without justice.

It needs justice as it does oxygen. Even perpetrators of injustice who seem not to need justice need it.

If they don’t need it today when they are in power, they will need it tomorrow when out of power. Tragically, people have to lose justice to know its value.

Without violation of justice, people take it for granted and don’t know its immense worth. I knew the value of justice and freedom when I lost both in jail, detention and torture for 13 years.

As justice is never absolutely safe, even from judges and lawyers, men must protect it for it to protect them.

Justice is never given on a silver platter. It is always fought for. In books like The Winslow Boy, An Enemy of the People, Kusadikika and I Accuse, the refrain is always: “Let right be done though the heavens fall.”

As the struggle for freedom is also a struggle for justice, the greatest among us are those who engage in epic struggles for freedom and justice.

Because of my love for justice, which I identified with judges, I grew up wanting to be a judge.

But after the trial of the Kapenguria Six — Jomo Kenyatta, Bildad Kaggia, Paul Ngei, Achieng’ Oneko, Kung’u Karumba and Fred Kubai — by the cruel colonial magistrate Thacker, and later my trial and four others by William Tuiyot, I was convinced that whereas there are judges and lawyers who are heroes, there are also judges and lawyers who are outright enemies of justice.

Some judges have worked to subvert and kill justice, condone torture and oppression and shamelessly defend dictatorship.

As part of a society that is corrupted by negative ethnicity, courts can never dispense equal justice to all. They will favour some and discriminate against others.

Were we a better society, the Judiciary would be the domain of law, home of logic and predictability of justice.

In Kenya, however, legal language is incomprehensible to the common man and the marriage of law and logic no longer gives birth to justice.

When law, evidence and logic no longer bear justice, the just and innocent attend judgments with trepidation and fear because the law has become a lottery where one is more likely to lose than win.

Before, I thought justice is so sacrosanct that one can safely leave their fate in the hands of a judge without any fear of loss or harm.

Unfortunately, this is hardly the case. Leaving oneself in the hands of a judge is like a sheep leaving its fate in the hands of a hyena. It is both murder and suicide.

I have never felt safe in court. The best I have felt is tense and trapped. How can a place where one does not feel safe be the home of justice?

In the many times I’ve been to court, I’ve learnt a few things. One, justice can only exist, be propagated and protected by rule of law. Justice has never flourished in a dictatorship however benevolent.

Two, according to Sir Thomas Moore, rule of law is a forest that protects justice from its foes.

Three, in Kenya judges are hardly champions of justice. Even a marriage of law and evidence will not guarantee justice.

Four, fairness and not lots of English is a judge’s most important quality. If a judge is not fair, he must recuse oneself.

If a prejudiced or compromised judge refuses to recuse oneself, there will be no justice and there might as well be no trial.

To ensure justice, no judge should reject an application for recusal. A judge who does not believe in fairness, in defending rights however difficult or takes bribes, should never try anyone.

Finally, mediation and reconciliation sought well after judgment in the name of review has become the new way of frustrating judgments and their implementation.

If judgments can be made and their implementation substituted with mediation, why not abolish hearings and substitute them with mediation from the word go?

Though Chief Justices Willy Mutunga and David Maraga have been beneficiaries of our limited judicial reforms, history may not judge them as champions of justice who promoted ethnic and class equality, waged war against corruption, exonerated and liberated victims of political imprisonment, exile, torture and detention that have plagued Kenya for so long. It is that sad.

The writer is a former political detainee and former MP for Subukia