LSK under Kibaki: The era when lawyers became entangled in Kenya’s major contradictions

By Gilbert Muyumbu

As we saw in the first part of this article, the Kibaki administration faced perhaps the most dynamic rule of law contexts of any administration in Kenya’s history. At least three dimensions characterised the context: retention of the status quo inherited from the preceding Moi era, which constituted the first dimension; managing the post-election crisis, which formed the second dimension; and adopting the new 2010 constitution, which characterised the third dimension.

Just as activities, movements and shifts in the larger cosmos have effects which we see here on planet earth, the activities, movements and shifts in the larger political and governance sphere as the Kibaki administration engaged with the rule of law under each of these three dimensions had significant effects on the LSK. In this second part of the article, we examine these effects. 

Part of what the Kibaki administration inherited from the preceding Moi administration was a very vibrant civil society and non-state actor sectors, which worked hand-in-hand with the political opposition to bring an end to the KANU era. As part of the non-state actors, LSK played an active role in this process. Upon getting into power, the Kibaki administration reciprocated the support received from non-state actors by presiding over four related measures. 

First, it relaxed most of the KANU administration’s restrictions on the sector. The administration minimised the conflicts witnessed between the government and the sector in earlier administrations. The only minimal exception to this was sections of the mainstream media, which suffered direct attacks for their reportage of goings-on within the administration during the administration’s reign. Nonetheless, the relaxed environment led to a golden era for the sector’s expansion across the country, and entities within the sector, such as the LSK, benefitted from this freedom. 

Secondly, the administration’s style of governance allowed for the emergence of strong checks and balances institutions, particularly parliament and the political opposition. These two institutions made non-state actors’ efforts in good government almost redundant. They reoccupied the spaces these actors had initially taken over, thus pushing them from public visibility as champions of good governance. With reduced relevance and visibility within the governance sphere, the actors lost the prominent positions they had occupied in the eyes of the public. 

The third measure had to do with the nature of politics which emerged under the Kibaki presidency. It was highly ethnicised and personalised, especially after the 2005 constitutional referendum. This left many institutions, including societal groupings such as churches and professional bodies, divided along ethnic and personality lines. The final measure involved the co-optation of members from among the non-state actors, leaving them with less talent to challenge the government.   

These four measures affected LSK directly. The relaxed environment and emergence of institutions to offer strong checks and balances meant reduced relevance and visibility of LSK as a promoter of good governance. Unlike the ‘80s and ‘90s, when LSK had been among the few institutions that challenged the KANU administration, this role had been taken over by parliament and the political opposition under the Kibaki administration. As for the ethnicisation and personalisation of politics, this played out, especially in the second and third dimensions of the Kibaki administration’s relationship with the rule of law.

Yet perhaps the most significant effect of the Kibaki administration on the LSK was the co-option of some prominent members of the body. Like many other societal organisations and non-state actors during the last years of the Moi administration, the LSK campaigned to bring an end to the administration. In particular, LSK had many of its members, including former chairpersons and council members, active in opposition politics. With the opposition winning the 2002 election, the new Kibaki administration directly reciprocated the support received from the lawyers by having senior LSK members appointed to senior government positions. This was the case with at least two prominent LSK members, Kiraitu Murungi and Martha Karua, who joined the new administration as cabinet ministers. Other members such as Paul Muite emerged as leaders within parliament, serving on important parliamentary committees to reform the country’s governance. 

However, before the four measures took a heavy toll on the LSK, the organisation largely supported early initiatives of the Kibaki administration, under both the leadership of its first female leader Raychelle Omamo and her immediate successor Ahmednasir Abdullahi. The first area of collaboration between the LSK and the new administration was reforming the Judiciary. This took two dimensions. First, the LSK called for the resignation of Bernard Chunga, the last Chief Justice under the Moi administration. Seizing the momentum provided by the LSK, the Kibaki administration declared that it was forming a tribunal to investigate Justice Chunga. Rather than face the tribunal, Chunga resigned immediately and was replaced by Evans Gicheru as the new Chief Justice. 

Secondly, with support from the LSK, the Kibaki administration embarked on what the government called the ‘radical surgery’ of the Judiciary. The purpose of the exercise was to remove from the judiciary officials said to have brought disrepute to the institution through unprofessional conduct. To undertake the exercise, the Kibaki government appointed a committee chaired by Justice Aaron Ringera. The Committee came up with a report containing a list of 23 out of 45 Court of Appeal and High Court judges and 82 of the 254 magistrates accused of unprofessional behaviour. It handed the list over to Chief Justice Evans Gicheru with the recommendation that the implicated individuals should be given two weeks in which they would either resign from their positions or face prosecution for corruption. The exercise led to the resignation of 20 judges and 82 magistrates from the Judiciary, constituting about 50% of judicial officials. 

The LSK, now under the chairmanship of Ahmednasir Abdullahi, fully supported the radical surgery. Its interest in the exercise stretched back to the period just prior to the end of the Moi administration when it had staged public demonstrations against impropriety and unprofessional conduct within the Judiciary. The organisation, therefore, saw the radical surgery as an opportunity to deal with the problem. The support offered was in three ways. 

First, it defended the radical surgery from attacks by critics. Among the attacks launched against the exercise was that it did not offer those it accused of unprofessional conduct an opportunity to clear their names. The LSK dismissed the criticism, urging those targeted by the exercise to use the judicial process to clear their names. Secondly, the organisation conferred the Law Society of Kenya Award on Justice Aaron Ringera in early 2003, praising him for leading the radical surgery. Thirdly, it drew up a list of up to 35 lawyers recommended to replace the judicial officials purged from the Judiciary under the radical surgery.

However, it did not take long for differences between LSK and the Kibaki administration to emerge. The first open conflict between the LSK and the new administration broke out in September 2004, during the chairmanship of Ahmednasir Abdullahi. The main reason for the conflict was the membership of the Kenya Anti-Corruption Commission (KACC). LSK was partly responsible for determining membership into the Commission, being a leading member of the KACC Advisory Board, which was responsible for interviewing and making recommendations to the President over appointments into the Commission. As chairman of the KACC Advisory Board, Abdullahi had led in carrying out interviews and recommending that the President appoints four directors to the KACC. 

However, the Kibaki administration accepted only three of the recommended directors, rejecting the fourth one for what it said were integrity issues. This led to vigorous protests from the LSK, with Abdullahi resigning as chairman of the KACC Advisory Board and withdrawing LSK membership from the Board. His actions were further reinforced by the LSK council, which faulted the President for rejecting the Board’s recommendations, accusing him of overstepping his mandate and threatening to go to court over the matter. This heralded a long fight between the LSK and the new administration over the control of the anti-corruption institutions. This fight only ended under the chairmanship of Okong’o Omogeni, one of Abdullahi’s successors.

The second area of open conflict between the LSK and the Kibaki administration was over the Anglo-leasing scandal, which came into the public domain in April 2004. The LSK blamed the scandal on the AG Amos Wako’s advice to the Kibaki administration, accusing him of neglecting his core mandate. Under Tom Ojienda, the LSK initiated a judicial proceeding against the AG for the scandal. However, the process was scuttled before it could lead to any serious repercussions for the AG.

The third area of conflict between the Kibaki administration and the LSK involved the Yash Pal Ghai-led Constitution of Kenya Review Commission CKRC) constitution-making process, which had resumed shortly after the administration had ascended into office. However, the resumption did not last long. Shortly afterwards, the government led a walkout from a delegates’ conference debating the final draft of the constitution at the Bomas of Kenya in Nairobi. In staging the walkout, the government claimed that the conference had been infiltrated and hijacked by its rivals, who had then imposed on the country an unworkable constitution. It instituted a parallel process led by AG Amos Wako and lawyer Abida Aroni, which came up with a reworked version of the CKRC (Bomas) draft constitution, which came to be popularly referred to as the Wako or Kilifi draft. 

Responding to these developments, the LSK condemned both the government and the political opposition for breaking up the constitution-making process. To keep the country on the path towards a new constitution, chairman Ojienda led it to draft what is held as a compromise constitution, reducing the CKRC (Bomas) draft from more than 300 articles to only about 27 articles in what is justified as a move aimed at clarity and conciseness. Among the provisions within the 27 articles of the LSK draft constitution included strong provisions on government accountability, the Bill of Rights and devolution. 

The Kibaki administration not only ignored the LSK intervention but also went ahead to present the Wako/Kilifi draft to a public referendum in November 2005. Feeling ignored, the LSK teamed up with the political opposition and successfully campaigned against the government-sponsored draft. Although the campaign against the government-sponsored draft constitution was successful, it left LSK divided along the ‘no’/’yes’ divide, with many lawyers, including LSK council members and former chairpersons supporting opposite sides of the referendum. It was perhaps the first case of ethnicity and personalised politics affecting the cohesiveness of LSK in governance issues. 

A less divisive area of conflict between the Kibaki administration and the LSK involved the resolution by Chief Justice Evans Gicheru that any lawyer who sought to challenge government directives would have to file their objection in Nairobi. The LSK protested the move, seeing it as overly centralising judicial services and aimed at stifling the ability of lawyers to challenge government policies. Tom Ojienda led the initial LSK protest against this resolution. His successor Okong’o Omogeni picked up the protest upon assuming office in early 2007. He moved the protest a notch higher by directly appealing to the President, requesting him to sack the Chief Justice from his position for issuing the resolution. 

The final area of conflict between the Kibaki administration and the LSK under the first dimension of the administration’s interaction with the rule of law in the country involved the controversial 2007 election. Responding to the release of the presidential election results and the hurried swearing-in into the office of President Kibaki for a second term, Omogeni convened a press conference in which he called on the President to resign from office and for the country to hold a repeat election. 

Responding to the LSK statement, the government led by Minister Martha Karua – incidentally a former LSK council member – accused Omogeni of being a member of the opposition ODM party and making a unilateral decision to dismiss the election without consulting the LSK council. Much like the 2005 referendum, the disputed election highlighted divisions within the LSK along the political factions of the time. 

The 2007 disputed election ushered in the second dimension of the Kibaki administration’s interaction with the rule of law. It mainly consisted of setting up initiatives mediated by external actors to help the country recover from the electoral crisis. Among these initiatives included the Truth, Justice and Reconciliation Commission (TJRC), which was expected to deal with historical injustices partly blamed for the violence, the National Cohesion and Integration Commission (NCIC), expected to deal with issues of national cohesion and integration, the Kriegler commission to undertake a forensic audit of the 2007 elections to establish what had happened, the Waki commission to establish perpetrators behind the post-election violence and the Committee of Experts on Constitutional Review (CoE) to return the country to the abandoned constitutional review process.

The LSK’s role during this period revolved around resolving the crisis. The organisation could not directly mediate the crisis, having been accused of partisanship and being divided internally. However, it participated in the initiatives that arose from the international mediation. Two of the initiatives where it was heavily involved were the CoE-led constitution-making process and the Kriegler-led reform of the electoral management system. As it turned out, the CoE-led constitution-making process was the most successful of the initiatives established during this period. 

The LSK contributed to this success primarily by strengthening the independence of the Judiciary. Through Omogeni, the organisation proposed a new way of recruiting judicial officials, which reduced the influence of both the executive and parliament on the process of enhancing judicial independence. 

Under the new system, the recruitment process of the Chief Justice and other senior judicial officials would be handled by a reconstituted Judicial Service Commission (JSC). Positions within the Judiciary would be openly advertised, and shortlisted candidates taken through open interviews. Upon conclusion of the interviews, the JSC would submit names of successful candidates to the President for appointment after vetting by parliament. Although the clause was initially opposed by AG Amos Wako and Minister Martha Karua, it eventually was adopted and enacted in Kenya’s 2010 constitution. It has since been applied in the recruitment of all the Chief Justices and judges of the Supreme Court who have served since the passage of the 2010 constitution.

LSK’s role in the other initiatives of this period was not as prominent. The organisation neglected other areas of reform work, especially land reform and the TJRC and ICC processes, leaving them to falter and fail. 

The enactment of the new constitution in August 2010 ushered in the third dimension of the Kibaki administration’s interaction with the rule of law. It marked the start of a new and radical configuration of the rule of law in the country. The dimension was characterised by the creation of new institutions such as the Constitution Implementation Committee (CIC), the Directorate of Public Prosecution (DPP) and the Commission for Administrative Justice (Ombudsman) and the reconfiguration of old institutions such as the Judiciary, the electoral management body and parliament to increase their independence from executive interference. 

The LSK, under the leadership first of Kenneth Aikido (2010-2012) and later Eric Mutua (2012-2016), played a leading role in the new dispensation. Its relationship with the Kibaki administration swung between cooperation and disagreement, depending on the issue. In particular, the organisation’s major contributions were seen in three areas. The first was constitutional implementation, spearheaded by the Constitution Implementation Committee (CIC). The CIC was constitutionally mandated to monitor the first five years of implementing the new constitution. It was chaired by Charles Nyachae, a former council member of the LSK. The LSK contributed several of its members to the Committee. 

The Judiciary was the second institution where LSK’s role was active under the new constitution. The reform of the Judiciary under the new dispensation began in dispute. It was ignited when President Kibaki appointed Court of Appeal judge Justice Alnasir Visram as the new Chief Justice. The appointment was rejected by parliament, which accused the President of not following the laid down procedure under the Grand Coalition Government, where he was expected to consult the Prime Minister. To resolve the dispute, the Kibaki administration withdrew Visram’s appointment and left the process of determining the new Chief Justice to the JSC, as had been earlier proposed by the LSK. 

The JSC itself was reconstituted afresh, with LSK being represented within it by a member elected directly by LSK members. The first LSK representative in the new JSC was former chairman Ahmednasir Abdullahi, who was chosen in an election which pitted him against another former LSK chairman, Okong’o Omogeni. Another former LSK chairman Tom Ojienda replaced Abdullahi after serving a two-year tenure in the Commission. With LSK’s direct participation in the JSC, it used the opportunity to influence the direction that the new Judiciary took by emphasising the entry of personnel who could promote judicial independence and uphold the institution’s integrity.

The final major interaction area between the LSK and the Kibaki administration after enacting the 2010 constitution was in the management of the 2013 general election. LSK’s contribution to this process took at least three forms. First, the organisation was represented directly in the Committee constituted to recruit personnel for the newly created Independent Electoral and Boundaries Commission (IEBC). This was to ensure that the process followed the laid down law and was devoid of manipulation by politicians. Secondly, upon the declaration of presidential election results by the IEBC and its disputation by the opposition Coalition for Reforms and Democracy (CORD) through a petition at the Supreme Court of Kenya, LSK chairman Eric Mutua requested to be enjoined in the proceedings as an amicus curiae. However, the court rejected Mutua’s request, arguing that the LSK under Mutua had taken sides in the electoral dispute.

In conclusion, it can be said that under all the three dimensions in which the Kibaki administration exposed its attitude towards the rule of law, the administration’s interaction with the LSK was primarily characterised by cooperation. What can be considered the administration’s openly aggressive measures against LSK were only two. The first of such efforts was the directive by Chief Justice Evans Gicheru to make it logistically difficult for lawyers to challenge the administration in courts of law. Through the directive, the Chief Justice tried to limit the capability of lawyers to challenge government policy by centralising the process of filing their challenges with the Judiciary.

The second antagonistic action targeted a former LSK chairman for positions taken against the administration. The former chairman failed to secure a position within the new institutions which emerged with the passage of the 2010 constitution. Although he had applied, attended interviews and emerged with the best marks required to head the new institutions, including the newly reconstituted Ethics and Anti-Corruption Commission (EACC) and the newly established Directorate of Public Prosecution (DPP) and the National Land Commission (NLC), the Kibaki administration refused to appoint him. The chairman attributed the administration’s reluctance to appoint him to the position he took as chairman of LSK, especially over the disputed 2007 election, which had called on the President to resign and have the country conduct a repeat election.

Besides these two antagonistic moves, the effects of the Kibaki administration on the LSK were minimal compared to other administrations in the country’s history. The effects were largely indirect and arose from measures instituted by the administration, which affected all other societal organisations of which the LSK formed a part. Two of these measures included strengthening parliament and the political opposition and making politics highly personalised and ethnicised. The strengthening of parliament and the political opposition made LSK redundant since it took away the organisation’s platform during the previous administrations when the two institutions were muzzled. 

Personalised and ethnicised politics, on the other hand, led to divisions along similar lines within the LSK, making the organisation, along with others such as the National Council of Churches of Kenya (NCCK), lose their previous ability to restrain the government from excesses. The organisation remained unable to present a unified picture over such monumental events in the administration’s life as the 2005 constitutional referendum and the disputed 2007 election, with various factions emerging to champion different positions. It had been caught in the country’s main contradictions, including ethnicity, the quest for wealth and power and personalised politics much like the rest of societal groupings. These affected its ability to be an effective campaigner for the rule of law in the country.  (

— Muyumbu is studying LSK history for a PhD from Egerton University. Reach him at gilbertmuyumbu@gmail.com for any feedback on this or any other article in this series.