By Kibe Mungai
The spectacle, drama and fall-out surrounding the deportation and re-deportation of controversial lawyer Miguna Miguna in the wake of the swearing in of Raila Odinga as the people’s president left little doubt – if any was needed – that in high-voltage affairs of the State, the Jubilee government is determined to have its way whether the courts like it or not, and court orders notwithstanding. In less dramatic atmosphere, a similar scenario is playing out in the dispute concerning whether Justice Mohamed Warsame should be vetted by Parliament before his appointment as the elected representative of the Court of Appeal in the Judicial Service Commission (JSC).
In many ways, the current clash between the Executive and the Judiciary is not surprising because in the wake of the unprecedented nullification of Uhuru Kenyatta’s presidential election in August, 2017, the President, whilst expressing his deep disappointment with the Supreme Court’s reversal of a credible electoral process, promised to revisit the matter after his re-election in the repeat presidential election held in October, 2017.
At first glance, Government’s disobedience of several court orders in Miguna’s citizenship cases and the order barring a parliamentary committee from vetting Justice Warsame are testaments of Jubilee government’s vengeance against the Courts and its apparent scheme to tame the Judiciary.
On closer analysis, however, the problem, as I will shortly demonstrate, has deeper roots than the presidential election petition fall-out. It is all about the legitimacy of liberal democratic order, stupid!
Lest we forget, until the collapse of the Soviet Union in 1991, authoritarian regimes were the rule rather than the exception across the world. In the binary world of the Cold War era, dictatorships thrived so long as they enjoyed the protection and patronage of either the USA-led Western Democracies or the Soviet Union-led Communist bloc.
Upon the collapse of the Soviet Union and its communist ideology, the Western capitalist democracies were empowered to coerce authoritarian regimes to adopt multi-party democracy, free market capitalism and political pluralism, free the media and let civil society organisations to thrive.
One of the major elements of liberal democratic ideology was the introduction of the two terms limit for the president, which guaranteed some kind of political transition whatever the quality of elections in a given country.
The agitation for multi-party democracy was not a smooth ride in many a country because, as US anti-slavery activist Fredrick Douglas once said, power concedes nothing without a struggle. In the heady days of the early 1990s, the myriad authoritarian regimes encountered a variety of good or bad fortunes in their political transitions. In such countries as Tanzania and Uganda, the ruling parties Chama Cha Mapinduzi (CCM) and National Resistance Movement (NRM) respectively were able to manage the liberal democratic wave by maintaining solidarity of the one-party political nomenklatura, and the reward is that they remain in power to date.
In Kenya, the KANU regime was not as lucky. It is fitting to acknowledge that in breaking ranks with KANU and joining the “dissidents’” clamour for multipartysim, Kenneth Matiba and Charles Rubia gave a massive impetus to pro-democracy forces that ultimately deprived KANU of the peace and quiet to manage the political transition in a way that could guarantee its long-term control of the State.
In retrospect, we know KANU won the 1992 and 1997 General Elections because of the failure by the leaders of opposition parties to demand for comprehensive constitutional reforms before the first multiparty elections in 1992.
Luckily, unlike in many other authoritarian countries of the 1990s, Kenya’s civil society was strong, innovative and influential enough to spearhead the clamour for comprehensive constitutional reforms that culminated in the promulgation of the Constitution of Kenya on August 27, 2010.
As they go, few constitutions in the world can better Kenya’s own, in terms of liberal democratic credentials. In the fullness of time, this could as much be its bane as its boon depending on how it fares in the crude world of politics.
Looking back, the 2010-2015 period will go down in history as the golden years of the 2010 Constitution. As illustration, during this period the incumbent Chief Justice Evan Gicheru and Attorney General Amos Wako were forced out of office, constitutional commissions and independent offices were established, the first general election under the 2010 Constitution was successfully held in April, 2013 and the devolved system of government was rolled out.
Besides devolution, one of the most transformative features of the Constitution was the establishment of a new, multi-layered court system that structurally and operationally protects the Judiciary from direct control and influence of both the Executive and Parliament. Added to this, Article 1 embodies the revolutionary notion of people’s sovereignty and it goes on to say that this power can be exercised by the Executive, Parliament and the Judiciary.
With such revolutionary provisions, tension and conflict between the three arms of government was bound to erupt sooner or later. The reason for this is fairly simple: In the old democracies, the independence of courts is a cardinal principle of governance. In practise, however, the political arms of government usually have their way – provided governmental decisions and actions broadly falls within the legal framework. The constitution of such democracies create no illusions that judges derive their mandate from the people.
Thus, whilst Alexander Hamilton in Federalist 78 observed that the Judiciary is the weakest of the three arms of government because it “has no influence over either the sword or the purse”, some Kenyan judges, emboldened by the revolutionary provisions of the Constitution, have taken the fiction of co-equal arms of government a little bit too literally.
Not surprisingly, in Dr Fred Matiang’i v. Miguna Miguna & Others (2018) eKLR, the learned appellate judges spelt out the legal principle of the supremacy of the law as embodied in court orders as follows:
“When courts issue orders, they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issue ex cathedra, are compulsive, peremptory and expressly binding. It is not for any party, be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance.
This Court, as must all courts, will deal firmly and decisively with any party who deigns to disobey court orders and will do so not only to preserve its own authority and dignity but the more to ensure and demonstrate that the constitutional edicts of equality under the law, and the upholding of the rule of law are not mere platitudes but present realities.”
In the end, however, Miguna could not re-enter Kenya on the strength of a myriad court orders and was in fact re-deported, the orders notwithstanding. The issue here is that a red line has been drawn and the message is that the State must be allowed its way where it is determined to have it!
In Kenya, under the able leadership of Chief Justice Willy Mutunga and now David Maraga, the judges of superior courts readily deployed the revolutionary notion of people’s sovereignty under Article 1 of the Constitution and the inevitable result was the existential battles of legitimacy between the Jubilee administration and the courts that played out dramatically in the count-down to the August, 2017 general election.
As we well know, the unprecedented judgement of the Supreme Court to nullify the election of President Uhuru marked the high noon of this long-drawn conflict and there is no merit in restating the controversial events here.
The more important thing is to know we are in a deep crisis and must understand it in order to manage it. It should not be a surprise that as the conflict between the Executive and the Judiciary reaches the climax, the main political forces have started setting the stage for elite-led constitutional reforms and it would be naive to assume that a new Executive structure will be the only subject of interest.
The thing is, whilst the Constitution empowers the Supreme Court to invalidate a presidential election, no politician actually expected that judges in their right minds would deign to actually do so. Now that the “Maraga Judgement” proved a presidential election can indeed be nullified, the politicians cannot be expected to rest easy and the explanation should be easy to discern.
Whatever the content of the emerging clamour for constitutional reform by the political class, there should be no doubt that the end product will seek to blunt, dilute and whittle-down the liberal credentials of the Constitution and the powers of the Judiciary are likely to be trimmed down.
Of course it will not be a walk in the park for the political class to reverse Kenya’s democratic gains but it is wise to acknowledge that the climate to make a good attempt could not be more conducive.
Across the world authoritarian forces are resurgent, from Philippines, Hungary, Malawi, Zambia, Poland, Turkey, Israel and even Donald Trump’s America. In the old authoritarian states like China, Uganda, Rwanda and Russia, dictatorships are entrenching themselves. Three factors explain the fresh impetus of authoritarianism across the world.
The first one is that, in the eyes of many people, over the last three decades the ideology of free market democracy has failed to deliver its lofty promises, with the consequence that the poor and the middle classes are worse off today than they were during the Cold War era.
Moreover, Roland Rich observes in his book Democracy in Crisis: Why, Where, How to Respond, “Democracy is not living up to its promise in so many of the third wave countries. It is not producing competent leadership; it is simply not delivering”.
The ideological credibility of democracy has been further undermined by the failure of free market capitalism to spread the benefits of economic growth to the majority of citizens even as the concentration of wealth in a tiny elite becomes more acute.
The second challenge to liberal democracy is the rise of China as the second biggest economy in the world and largest bilateral lender and benefactor to most of the Third World Countries. In ideological terms, the phenomenal rise of China as a dominant economic power which has lifted over 500 million from poverty within three decades has created reasonable doubts whether free market liberal democracy is the only route to economic paradise and social progression.
Thus when Chinese President Xi Jinping removes presidential term limits, curbs media freedom, clamps down on civil society and political rivals whilst delivering incredible economic benefits to the vast majority of the Chinese, it becomes difficult to challenge African leaders seeking to emulate the ways of the Chinese Communist Party.
The third challenge is President Donald Trump. In an interview with Newsweek magazine on her new book Fascism: A Warning Madeline Albright, the former US Secretary of State, says that whilst President Trump may not be a fascist in the mould of Adolf Hitler and Benito Mussolini, Trump’s lack of democratic instinct, disdain for the press, the judiciary and the electoral process is a bad example to fascists in other countries “who are taking some of the things that President Trump says in order to justify their own behaviour.
Instead of the US being the leader in democratic values and leader of the free-world, the bottom line is that there is an empty chair there”. Thus when push comes to shove in the inevitable conflict between liberal and authoritarian forces in Kenya, nobody can safely bet that the US government will stand on the side of those challenging re-establishment of authoritarian rule in Kenya.
When all is said and done, the ultimate goal of any authoritarian system is to give the governing oligarchy the economic benefits of controlling the State and its resources, and to have the final word on what goes on in their country, including who is a citizen, who to bankrupt or jail and who to decimate.
These advantages must be attained and passed on to the families of the oligarchy, which explains the removal of term limits and family domination of the State affairs in the typical authoritarian state.
There is no prize for guessing that a free media, active civil society and independent judiciary pose an existential threat to the long term survival of authoritarianism and the benefits it confers upon the ruling oligarchy.
And so Chief Justice Maraga should know the existential power game has just started. (
— Writer is a constitutional lawyer;