Defending Guardians of the Constitution against Ruinous Criticism

A Reply to Duncan O’kubasu

Abstract

Court decisions on bail applications by governors who face prosecution over corruption related crimes have come under sharp criticism from those who believe orders barring the governors from accessing their offices during trial offend the law since they amount to constructive and unprocedural removal from office. One such critic is Duncan O’kubasu who has penned a piece criticizing the decision of Lady Justice Mumbi Ngugi in the Moses Lenolkulal Case. This paper responds to that criticism by highlighting several flaws in the arguments presented by O’kubasu. He starts by understating the threat that corruption poses to the Kenyan society as the basis for undermining the inter-agency collaboration to address the vice, as well as the Judiciary’s own efforts as part of that collaboration. The rest of his arguments are founded on the wrong question, that is, whether the governors facing trial should be removed from office. Beyond these foundational errors, the rest of the paper contains a number of errors that culminate in his flawed conclusion that the decision amounts to ruinous judicial activism. When looked at in the context of the constant blame the Judiciary has faced in recent years when it has been labelled as the weakest link in the fight against corruption as well as the quest of the Kenyan people for ethical leadership, this paper argues that the decision is sound and Judges like Mumbi Ngugi J ought to be celebrated for sticking their necks out in defence of Chapter Six of the Constitution of Kenya.