BY NLM writer
In apartheid South Africa, Parliament was sovereign. Judges had no authority to review or overturn parliamentary decisions – no matter how morally reprehensible or legally decadent they were.
In short, says law professor Penelope Andrews of the University of Cape Town, public power under apartheid was not subject to review by the courts. But this ended with the enactment of the post-apartheid constitution that made judges the final arbiters in exercise of all public power. The courts have been a significant shield and bulwark for South Africa’s constitutional democracy since then.
“Through their creative and courageous decision-making, the post-1994 Judiciary, especially the Constitutional Court, has demonstrated the textbook example of an effective separation of powers doctrine in a democracy,” Andrews told The Conversation. The South African Constitutional court has become a shining example of judicial independence. It is on the strength of two of its pronouncements that President Zuma was kicked out of power.
Like South Africa, the Kenyan Judiciary is probably the only remaining solid check against the Executive. It goes without saying that in today’s Kenya, we have an Executive that is literally on a war path with the Judiciary and civil society. President Uhuru Kenyatta’s administration is not tolerant to checks and balances. For the last six years, through deliberate and calculated choice, the President has ensured that parliament, under the leadership of Justin Muturi, a man whose incompetence and ineptitude as a speaker of the House knows no bounds, no longer exists as a viable legislature. It has been reduced into a fiefdom used to extort in the name of parliamentary oversight, rubberstamp the Executive’s agenda and derail the courts.
With the defection of Raila Odinga to the Jubilee side, signified by the handshake and close relationship he has developed with President Kenyatta, the danger is that Kenya is sliding into an executive dictatorship that is intolerant to any form of dissent, and with little regard for courts and the Constitution.
The Judiciary – and here we are talking of individual judges in the High Court and the Court of Appeal – stands between an Executive that sees any form of divergent view as seditious, and the need to adhere to the rule of law. The Supreme Court has lost its shine since the retirement of former Chief Justice Willy Mutunga. Coupled with political divisions within its ranks, and with the inability of Chief Justice David Maraga to impose his will on the Court, the Supreme Court has fallen on hard times.
The Executive rightly knows where in the Judiciary its main opposition and threat lies. The High Court of Kenya provides the first line of defense against an overbearing Executive. The Constitutional and Human Rights and the Judicial Review Divisions are the two most powerful departments of the High Court. The court on its own is not powerful. The individual judges appointed to these courts make the difference. Justices Isaac Lenaola, Mumbi Ngugi, Mohammed Warsame , David Majanja, John Odunga, John Mativo and many others in the High Court, coupled with a strong Supreme Court, laid the basis for a Judiciary that was confident enough to stand up to the Executive.
Willy Mutunga was another important roadblock against the excesses of the State. Even though the Executive was suspicious of his ideological stand and fidelity to the rule of law, both President Uhuru and Deputy President William Ruto had a lot of time and respect for Mutunga. They were united in their belief that Mutunga, despite his hardline stand on issues, was ultimately a fine chief justice who had the best interest of the country at heart. The view the Executive – indeed the entire government – holds on Chief Justice Maraga are different. Several senior legal practitioners the Nairobi Law Monthly talked to view him as a colourless individual who lacks the stature and finesse to head the Judiciary.
The recent transfers by the Chief Justice of High Court judges had a number of underlying reasons, and they demonstrate the high-stakes fight for the soul of the Judiciary. They are largely viewed as a crucial victory by government. Through the transfers, the Chief Justice dismantled the Judicial Review and Constitutional Divisions.
Odunga was taken to Machakos, Mativo was transferred to the Judicial Review Division while Justice Aburili was taken to Siaya. It has been a long-standing demand by the government to get Odunga and Mativo out of Nairobi. To his credit, the Chief Justice has preferred to appoint to certain divisions and stations of the High Court a long list of judges who are politically correct and supplied to him for deployment.
The budget of the Judiciary is another platform of the vicious war between government and the Judiciary. For the last six years, parliament and the Executive have been continuously slashing the budget of the Judiciary with a view to crippling it completely. For the financial year 2018/2019, Treasury Secretary Henry Rotich was ordered to reduce the Judiciary budget to the 2010/2011 level, and provide salaries and recurrent expenditure only.
Battle for the JSC
The 2010 Constitution was written as response to mismanagement and dictatorship after independence. That is why it is strong on the Bill of Rights and an independent Judiciary. Unlike in the Moi era, judges are appointed by the Judicial Service Commission, which has representatives from outside the Judiciary.
Ultimately, the government knows that in order to own and control the Judiciary it must have full control over the Judicial Service Commission. Although the presidency has two representatives – in addition to the Attorney General – there has been an overt effort to populate it with individuals who are amenable to the Executive’s power narrative.
The President has appointed 3 new members whose nomination has been stopped by the courts on the basis that they are unrepresentative of the Kenyan public. It is the re-election, however, of Justice Mohammed Warsame that has scuttled government’s design for the Judiciary. He is seen by the Government as being too independent and strong headed and with a lot of influence in both the JSC and the courts. Both parliamentary leadership and top government officials have vowed that Justice Warsame will never sit in the JSC.
Ultimately, the success of the government’s design to control the Judiciary will be measured by the influence it has in the Judiciary. If it fails to capture the JSC, the Judiciary will remain strong and independent, and vice versa.
For the time being, the Uhuru administration’s disdain for the Judiciary can barely be disguised, and there has been every attempt to break its institutional spine, which has been manifested in many forms. One cannot fail to discern the attitude of Parliament and the Executive to place themselves above the Judiciary. Reading into the anger directed at the Judiciary over the nullification of President Kenyatta’s re-lection, as well as sustained attacks on the Courts, Justice Maraga warned that the Judiciary would not play second fiddle to Parliament and Executive, and vowed he was ready to pay the ultimate price – if it came to it – to defend the Constitution.
This pronouncement followed the filing of petitions for his removal alongside some of his colleagues at the Supreme Court.
The Chief Justice denies the claims that some judges are captive to external interests. Over time, there has been a sustained a crusade to clean up a Judiciary that is deemed to be incorrigibly corrupt, one which litigants wrote judgments for judges, and where KANU-era judges were accused of making decisions that favoured the Executive.
Unfortunately, for the keen eye, it is easy to see that Maraga is sending different signals to different quarters. Even though he gives the impression of an independent and firm Chief Justice who will protect the Courts at any cost, his actions portray him as someone who is more comfortable sitting on the fence. The transfer of Judges has exposed him as weak and indecisive, with little understanding of the dynamics and internal workings of the Judiciary. His general administrative control of the institution shows a man out of his depth.
The runaway corruption, backlog in the courts and breakdown of the disciplinary process has exposed the soft underbelly of Justice Maraga.
How he behaves henceforth will be a determinant in this war.