18th May 2013
The law is an ass. Justice is blind, but not deaf!
Two pieces of news these past few days reminded me of these expressions. There was the back-to-back news that Kamlesh Pattni, he of the Goldenberg infamy, had been cleared of all charges relating to the two decades-old Goldenberg scandal. Before we recovered from the Honourable Justice Joseph Mutava’s staggering ruling, the retired Ghanaian judge Edward Torgbor, awards Pattni Kshs 4.2 billion in an arbitration case.
Then there was the news about a ‘missile’ (a letter) fired to the United Nations Security Council by the head of Kenya’s mission to the UN, Ambassador Macharia Kamau, seeking to terminate on-going criminal cases at the International Criminal Court against President Uhuru Kenyatta and his deputy William Ruto.
The phrase ‘the law is an ass’ – ass as in donkey – was popularised by Charles Dickens in his book Oliver Twist. Mr. Bumble, a character mistreated by his domineering, law-breaking wife is incredulous when informed by a Mr. Brownlow that, though he had done nothing wrong, he was more guilty than his wife “…in the eye of the law; for the law supposes that your wife acts under your direction.” Mr. Bumble responds, “If the law supposes that…the law is a ass – a idiot. If that’s the eye of the law… the worst I wish the law is that his eye may be opened by experience-by experience.”
What Mr. Bumble is indignant about is the application of the law rigidly, without regard to common sense and real-life experience. As a metaphor, an ass (donkey), with its reputation for obstinacy and stupidity (not sure about stupidity), is perfect for capturing the contradictions and complexities of the law.
The law – often depicted as a blindfolded lady holding the sword in one hand and scales of justice in another – does not care what you think of Pattni. Lady Justice is blind but not deaf. She hears and weighs all evidence impartially, renders judgement and mete out justice accordingly. Pattni knows this. As long as we have no evidence that Pattni subverted justice (through corruption, for example), we have to accept the result of this seemingly impartial process. If we don’t, without offering persuasive, evidence-backed reasons, we will ironically be subverting the law and defeating justice. And yet, like Mr. Bumble, Charles Dicken’s character, we wish this stubborn donkey called The Law – the blindfolded Lady Justice – may have its eyes opened by our deeply felt experience.
This brings us to Ambassador Kamau’s ‘missile’ to the UN Security Council. The letter – aside from the obvious attempt to exercise realpolitik and brinkmanship – was a deliberate attempt to highlight the contradictions and complexities of the concepts of law, justice, democracy and, yes, even peace and stability.
True, people died. Others went through untold pain. Many continue to suffer to this day as internally displaced persons. It left a permanent stain in the nation’s psyche. Justice needs to be seen to be done.
But, with regard to the Kenyan case at the ICC, does the international community really and truly want Lady Justice to be completely blindfolded? Does is it allow her to peep through a crack in the blindfold?
It is clear that Lady Justice, in the case of the ICC, had not foreseen a situation as unique as that which obtains in Kenya. First, you have a president and his deputy that were elected democratically by a plurality of Kenyans, and confirmed as such by the highest court – a verdict accepted by the challenger. Second, major western powers affirmed this democratic and judicial due process and pledged support. Third, the same powers acknowledge the critical role a stable Kenya plays in a volatile region – from the Horn of Africa to the Great Lakes. Fourth, they also acknowledge Kenya’s anchor role in a fast-growing, resource-rich East Africa. Fifth, they see rising powers such as China and India (all non-supporters of the Rome Statute establishing the ICC) increasingly becoming serious strategic competitors in the African continent.
Now consider this: to abide strictly by the Rome Statute, the President and the Deputy President are required to be at The Hague in person during the entire trial period –except when the Court takes short breaks. Now suppose The president is attending trial at The Hague and suddenly a wave of serious insecurity sweeps through the nation; does the Court adjourn the trial then? For how long?
It is perfectly possible that peace and stability will prevail throughout the trial period. Still, there is a possibility, however remote, that the leadership vacuum created could become dangerously destabilising. If that were to happen, does the Rome Statute provide for Plan B?
And then there is the bigger question: Does strategic self-interest constitute a crack in Lady Justice’s blindfold? Is strategic self-interest wax in the Lady Justice’s ears, rendering her partially deaf?
If you think the law is an ass (stupidly obstinate), and Lady Justice blind but not deaf, think again.