By Dr Willy M. Mutunga
The Constitution decrees institutional and decisional independence of both the Judiciary and judicial officers. It does this by (a) decreeing the setting up the Judiciary Fund – to guarantee financial independence from the Executive and Parliament; (b) providing for the recruitment of women and men of integrity; (c) providing for the vetting of judicial officers recruited before the promulgation of the Constitution on August 27, 2010; and (d) setting up an independent Judiciary Service Commission, to oversee the recruitment and disciplinary proceedings against judicial officers and staff.
It cannot be denied that the Judiciary continues to struggle to assert its independence and freedom against pressures from various entities – the Executive, Parliament, corporate and civil society interests (the latter including religions), foreign interests, as well as national and international cartels. Also important are insidious pressures from the ethnic communities, family, and friends of the judicial officers and staff. The institution is yet to acknowledge the said insidious forces as being significant roadblocks to its function and mandate.
These pressures are compounded by the see-sawing confidence Kenyans have in the Judiciary. Divisions in the Judiciary, the lack of integrity by some judicial staff and officers, judicial laziness, and the reality that the formal courts only serve about 5 percent of the Kenyan population, make popular confidence in the Judiciary at times illusory. In political cases such as electoral petitions, the opportunity to build broad popular confidence in the Kenyan people is subverted by the elite politics of division. Election petitions and their outcomes dent whatever confidence that the Judiciary manages to muster among the Kenyan people – this confidence is further dented when judicial officers delude themselves that they do not engage in politics, and that the Judiciary is not an institutional political actor.
Liberal democracy continues to promote the myth that the state has three arms, which work independent of each other, and check and balance each other. The so-called separation of powers is rarely historicised, problematized and critiqued. Endemic corruption today represents the international and national interests that have captured and enslaved the three arms of state in the interests of profits before the Kenyan people. How can the three arms be separate when they are captured and enslaved?
The corrupt collusion between international and national interests of the elite has been exposed by the Auditor-General’s reports since Independence. The so-called international community, a euphemism for foreign interests, knows who our national thieves are. Yet the international community has always been guilty of perfidy, double-standards, hypocrisy, and racism when it comes to fighting corruption. Indeed, it is an open secret that both the US and the UK are the world’s leading money laundering economies. It is no wonder that data shows that our sovereign debt equals the wealth and assets stashed abroad by our thieving elite!
Intra-state-arms’ struggles continue in the name of which arm is nominally superior. Both the Executive and Parliament have managed to convince everybody that all state resources belong to them alone, and that equitable distribution of resources is governed by them and not by the Constitution. Indeed, the narrative is that both the Executive and Parliament “own” the taxpayers’ money and any money borrowed from other sources. In reality, Parliament never dares to repeat that boast to the Executive. The Treasury and Central Bank both remain the banks of the Executive.
The Executive, though decentralised and democratised by the Constitution, continues to fight the vision of the Constitution. It relentlessly champions the restoration of an imperial presidency that controls resources and their distribution, and is the hallmark of impunity. Parliament, though at times seen to challenge the Executive, has always been the latter’s poodle. And because the Judiciary refuses to do politics and seek political following from the Kenyan people, it is the only institution that has been subjected to periodic vetting (whose real objective is to make it less independent and force it to look to the other arms for validation) and constant destabilisation. These intra-state-arms’ struggles will, going forward, determine and define the promise of democracy in Kenya.
Prospects of success
The Judiciary is, indeed, at a crossroads: it can either continue its history of deluding itself that it does not do politics, and that it is not an institutional political actor – and face the consequences of that decision, or it can deliberately do politics against the other arms – and the political elite – by robustly and aggressively building the peoples’ confidence against the other two arms and the elite through the development of pro-people jurisprudence in the formal courts, to cement informal and formal access to justice for the Kenyan people.
Judiciary can either continue deluding itself that it does not do politics, or it can deliberately do politics to robustly build people’s confidence in itself”
The Judiciary should actualise the vision of the Constitution. It is developing jurisprudence, as decreed by the Constitution, which makes it hated by foreign and national interests that seek to make profits at the expense of the people’s interests. The Judiciary has already started this journey. It has developed pro-people jurisprudence on devolution, and must now do the same for other areas: integrity and leadership, for the political elites; values and principles of democratic governance; human rights, to create robust jurisprudence based on the social, economic, cultural, political, and civil rights of the people; strengthening institutions; accountability and transparency, particularly in the finance and security state institutions; national debt, on the basis of both national and international law; and citizen participation in all societal matters (the institution has done a remarkable job in this direction). The political totality of such a judicial approach is to become a temple of the refuge for Kenyans who are hated by their elites, to cultivate the political love of Kenyans for the Judiciary.
The effects of a success in such an approach are clearly that the Judiciary will gain its independence and freedom; obtain such reforms as the Judiciary Fund and the Judges Retirement Benefits Act; achieve the integration of formal and informal strategies for access to justice for all; and get the confidence of the people in its decisions on political disputes. The institution, in its politics, will consequently become an institutional political actor that joins other Kenyans in thinking freedom and emancipation.
I am not as naive as to believe that the judicial elite will not resist such approaches, but that will be a choice of a few who have cast their political lot with the thieving Kenyan economic and political elite.
The politics of the Judiciary is contained in its blueprints, the recent ones being the Judiciary Transformation Framework 2012-2016 and Sustaining Judiciary Transformation 2017-2020. The implementation of the reforms envisaged in the blueprints would create administrative and jurisprudential reforms to secure Judiciary as an institutional political actor in Kenya. It would be a great political beacon that would birth alternative political leadership, to liberate Kenya from the dominance, exploitation, and oppression of foreign interests and its agents, the Kenyan elite.
It is time we discarded the unthinking comforting illusion of the arms of the state and their separation, an enslaving narrative that has been with us for the last 123 years of our colonial and post-colonial history. It is time to build institutions that are pro-people, which articulate, in their mandates, the will and interests of the people.
–Writer was Chief Justice and President of the Supreme Court of Kenya 2011-2016. These are his personal views and not those of the Office of the Former Chief Justice