The idea is not so out-of-the-blue. The newly adopted Kenyan constitution stipulates that foreigners may be appointed as judges to high courts.
Here’s the logic. Kenyan society is so divided ethnically that no mathematical wizard’s computations can come out with a formula for a Supreme Court fair to all sides. The obvious solution: have judges that don’t belong to any of the ethnic groups!
The fact Kenya is having this discussion I believe means they are moving forward very fast towards a truly multi-ethnic society. Certainly the young people are not as fettered to their ethnicity as the older generations, but it is the older generations who remain in power.
The idea was suggested yesterday by Martha Karua, an MP from a Kikuyu district. What’s significant is that she was once the country’s Justice Minister. This idea is no joke.
The Supreme Court as created by Kenya’s newly adopted constitution will function very similarly to our own.
Quoted in Kenya’s Daily Nation today, Ms. Karua said the presence of “three foreign judges would instil a sense of neutrality even if the major political parties engage in horse-trading in the appointment of judges to the Supreme Court.”
She pointed out that two commissions that were created after the 2007 election violence to determine its causes and suggest remedies were composed of foreigners. The Commission of Inquiry on Post Election Violence (CIPEV) included a former police commissioner from New Zealand and a lawyer from the Democratic Republic of the Congo.
Several years ago I attended a lecture by the brilliant biologist, E.O. Wilson, who was at the time unveiling his new compendium of Darwin’s works. In response to a question from the audience, Wilson suggested the reason there was so much opposition to the teaching of evolution in secondary schools was because Americans were so tribal.
Think about it.
We may not be divided by ethnicity, but our ideological divisions today are as great as those between any Kikuyu or Luo, or Jew or Christian.
What Wilson was saying is that when divisions become tribal, rational compromise and dialogue between the tribes is futile.
What Karua is saying is the same.
Recognizing the problem is the first step to solving it. And imaginative Kenyans have once again come up with something truly brilliant.
My nominations to the U.S. Supreme Court would include Martha Karua herself, the venerable South African judge Richard Goldstone, and Abdullah Gül, the current president of Turkey. Yours?