By NLM reporter
No one appreciates better than President Uhuru Kenyatta and his deputy William Ruto the power and potency of the Kenyan Judiciary. Their presidency was literally borne of a court process. Their win at the Supreme Court made them realise the centrality of the courts under the Constitution 2010, and the enormous powers the courts wield.
The Supreme Court process had a profound impact on President Uhuru and his deputy: they realised that the Judiciary, under the leadership of the Chief Justice Willy Mutunga, was and is completely outside their orbit of influence; that it rotates on its own axis.
This realisation was further informed by the constitutional reality that the Judicial Service Commission makes all appointments at the Judiciary. Few months into the presidency, Uhuru and Ruto would discover that they are politically impotent in so far as the Judiciary is concerned; they quickly fathomed that it was the only obstacle or force that could stand up to them and checkmate their political agenda.
Uhuru sees the Judiciary as a trivial nuisance and wants to sideline it completely. Ruto started as a support cast in this agenda and now plays the role of a loyal second fiddle to Uhuru’s agenda for the judiciary. After all, this is Uhuru’s presidency and it is his vision and agenda that the country is ruled on. So the tussle between the Executive and the Judiciary in the last two years is one seen first as a supremacy battle and the latter as one merely involving the interpretation and enforcement of the Constitution.
Parliament and politicians support the President and his deputy in their struggle to contain, defeat and steamroll over the Judiciary. There are even a number of judges at the Supreme, Appeal and the High Courts, who support the UhuRuto agenda, with a view to weakening the Judiciary while supporting the Executive for narrow political and personal interests.
Gladiatorial war
True to their fears, the Judiciary has largely played its constitutional role. In the majority of cases, judges have stood for the rule of law and defied the Executive. In the process, UhuRuto have, in the past two years, engaged in a gladiatorial war with the Judiciary. As to who has emerged winner, the history books will have a field day with that. But early indications are that the pair has lost it big, not because members of the Judiciary are fighting government, but because the constitution is too powerful and too big for any individual to ignore.
Since their election in 2013, Uhuru and Ruto faced the allegations that as the political children and natural heirs of Kanu, their new administration, despite the razzmatazz of modernity, is a reincarnation of the former ruling party. Many Kenyans were rightly apprehensive that they would roll back the gains of the new Constitution, curtail civil liberties and run roughshod on their political opponents, real and imagined. But tribally neutral Kenyans were willing to give them the benefit of doubt.
Arbitrary declarations of war
Few months into their administration and in the comfort of power, Kenyans witnessed a new administration that wants to fight every force in sight. Uhuru and Ruto declared war on the Judiciary and tried to disband the Judicial Service Commission. The Opposition was ignored as if the country is a one party state. A very unnecessary war was declared against the media. Civil society was warned, threatened and finally assaulted through policies that have the DNA of Kanu. Today, corrupt State officers are promoted, the rule of law ignored and impunity allowed to rein supreme.
With a very clueless political Opposition, a majority in Parliament headed by card-carrying members of the Jubilee administration, a loyal security force headed by incompetent but loyal officers, the Uhuru administration has the entire goings to be a dictator. It only faces one opponent, and a formidable one at that: the Judiciary, under Chief Justice Willy Mutunga. Despite some internal divisions within the institution and the presence of judges who act as a fifth column, Willy Mutunga and the Judiciary have remained steadfast in their defence of the institution. Under heavy political fire they have remained cool.
It must be appreciated that when the Judiciary slaps the Executive in the face and blocks critical government agenda, it is not, contrary to popular perception in government, playing politics; it is simply obeying the commands of the Constitution.
The government is further aggravated by the total lack of a powerful contact person in the Judiciary, and that it can only count on few judges who are basically loyal to the system out of tribal loyalty. The Executive simply has no access to the top echelons at the judiciary. For the Executive, lacking influence over a chief justice is unchartered territory and a treacherous one at that.
Four judges stand out in checking the Executive and putting it in its rightful place. Chief Justice Willy Mutunga is the strongest barrier yet against the intrusions and transgressions of the Executive. This he has done several ways. First, he has shown, during his tenure, that judges will be free from any interference, including from his office. This policy has a liberating effect in that judges under his watch have all the independence to ensure that no one encroaches on the Judiciary’s territory. Second, Mutunga has shown that he is politically neutral in the ethnically polarised politicos of Kenya. He has little time for the politics that has consumed so many, and remains a disinterested bystander. Third, members of the Judiciary know that he can go toe to toe with the political class to protect judges and the Judiciary from political attacks.
Three other judges of the High Court who are the forefront in the entrenchment of constitutionalism and who concomitantly hold the Executive and the Legislature at bay are Justices Isaac Lenaola, Mumbi Ngugi and George Odunga. These judges take the lion’s share of the credit for the good name the Judiciary has earned in the past three years. In charge of the constitutional and human rights, and the judicial review divisions of the high court, these judges man the intersection between power and justice. Every challenge that tests Executive and Legislative powers comes before the three judges. By upholding the law and showing fidelity to the Constitution, they have shown Kenyans that they are judges who take their oath of office very seriously. By ruling according to the law and Constitution, they have individually and collectively earned the wrath of the state, Odunga especially. Because of his ethnicity, he is often, quite unfairly and wrongly, seen as one who will allow any petition against the State. Even such propaganda has not cowed him, according to his close associates at the Judiciary.
The Judiciary, in its gladiatorial war with the Uhuru administration, was emboldened by the Shollei saga and the fight the former Chief Registrar had with the JSC. Once Parliament impeached JSC commissioners and Uhuru appointed some riffraff of a committee, made up of Jubilee youth wingers, as members of the commission, it dawned on the Judiciary that it faced the most powerful assault from the Executive since the Constitution was promulgated.
Precedent-setting ruling
It was clear to all that Uhuru and Ruto were determined to crush the Judiciary once and for all. After all, this was the only force standing on the way of absolute rule. Justice Odunga initially stopped Parliament from hearing the matter and, after the court order was ignored, the CJ appointed a bench of five judges to hear the case. Justice Odunga stopped the whole process and made a scathing ruling in which he strongly rebuked Parliament for ignoring court orders. He also made a precedent-setting ruling in which he made it clear that the Constitution is supreme and the court will enforce the same at whatever cost.
That judgment set the scene for future engagements between the two, on terms basically formulated by the Judiciary. The judgment quashed the decision of the President and disbanded the tribunal he had appointed to investigate members of the JSC. This was a watershed case. It bruised the standing of the President; it reasserted the supremacy of the Constitution; most importantly, it sent a signal to Uhuru that the courts were ready to scrutinise every decision he took.
Most recently, government is furious following the judgment of a five-judge bench on an anti-terrorism law passed last year. That the government is seething with anger is a gross understatement. The government has sold the security law as panacea to all the security ills of the government despite evidence to the contrary, and advises that the blame lies not in the adequacy of the laws but corruption, tribalism and state inefficiency.
After drafting a draconian law that was a total negation of constitutional values, the Opposition, Cord, challenged the law in court. After a lengthy hearing, the court finally declared that the thrust of the security law were unconstitutional. Whereas any government should not be greatly damaged when courts declare certain laws unconstitutional, the judgment of the court greatly damages the credibility and the standing of the Uhuru government for a number of reasons.
First, as a government that has a history of deceit in terms of constitutionalism and respect of the rule of law, the verdict was another testimony that Uhuru and his government see the Constitution as an unnecessary obstacle in their quest for absolute rule. Second, Uhuru’s government is seen as oppressive in regard to certain ethnic and religious minorities. The declaration of unconstitutionality of laws his government enacted to target these groups is seen as an instance where the courts will protect such groups. Third, the Uhuru regime is accused of taking tribal views of national matters as if the state is the property of a few. The judgment of the court was a strong rebuke of that flawed view of state ownership.
Parliament is another institution that has expressed its annoyance with the Judiciary. The checks and balances to which the Judiciary has subjected Parliament have almost crippled it. The latest instalment was in declaration as unconstitutional the CDF Act. This was equal to the killing of the goose that laid the golden egg, and MPs were supremely annoyed. Being denied access to a cool Sh3 billion yearly is a catastrophic setback. Parliament instead of seeing this as an instance where the court entrenches the law, saw the same as an instance of judicial activism. Justices Lenaola, Mumbi and Majanja, in declaring the amendment unconstitutional, sent a strong signal to Parliament: it was a reminder of the true meaning of the phrase “long arm of the law”.
Even an issue like the recruitment of officers to the disciplined forces is no longer an issue solely for the Executive. The Constitution subjects everything to strict rules of accountability and good governance. And so when government announced the mass recruitment of over 10,000 new policemen, the State thought it was business as usual. The exercise was opaque, defined by mass bribery, corruption, political dealings and nepotism. When the recruitment was challenged in court, Justice Lenaola had no problem invalidating the entire exercise. He made the point that one cannot be the beneficiary of a corrupt exercise in joining the public service. Baptism by corruption is unconstitutional, according to Lenaola. That the government’s programme was set back for a considerable time is a lesson that breaking the law is expensive. The government saw the decision of the court as another instance of judicial intrusion in its affairs.
Likewise, Judiciary has scuttled many appointments by the Executive and invalidated many of its decisions. Tender process is an area the courts are very vigilant about, to the annoyance of government. Government tenders, especially infrastructure, won by Chinese companies are defined by corruption. Usually 10 per cent of the contract price is given as kickbacks, and most of the contracts awarded to Chinese company are awarded on this basis. The courts have tried their level best to address this issue, with a view to improving governance at this level. This is one area where the courts need to do more robust and intrusive policing. The laptop contract for the supply of computers to primary school children is an example where the Judiciary has carried out robust judicial supervision of huge contracts. This was jubilee’s big pre-election promise. It can rightly be said that the promise is dead at the corridors of justice as are many flawed tenders by the government.
Watershed judgment
There are a plethora of political issues where the courts have made strong interventions. In integrity cases, the courts have laid the mark. In fact, the defining case in this area will be heard shortly by the Supreme Court when it decides on the suitability or otherwise of the chairman of the Ethics and Anti Corruption Commission. That decision, however it goes, will be a watershed judgment. The courts have also annoyed the government in the digital migration imbroglio. Senate has also been frustrated and infuriated in equal measure by the checks and limits the Judiciary has imposed on the impeachment process of governors. The matter of appointments of county commissioners has not pleased the government either.
The government was not happy when the Supreme Court ruled against the National Assembly in favour of the Senate in the allocation of money between the two Houses. Since the National Assembly is the favoured House, the Executive was greatly aggrieved by the said decision. The decision further fortified and placed barriers to protect devolution from the crippling assault on it by the Executive and the National Assembly. The sole dissenting judgment by the Supreme Court in the case was the preferred one in the corridors of power.
The UhuRuto administration has a lot going for it. It looks like it will stroll to a win the next election as it faces a weak and disjoined Opposition. It has huge tribal support in the country. It will also undertake good infrastructural developments in the country. But one thing is very clear. It will not tolerate divergent views, and wants to exercise power in absolute terms. It is a government that is very impatient with its opponents and sees the other side’s view as waste of time. Uhuru’s government has no time for civil liberties and constitutional values and norms. It has no serious political opposition. Parliament is too loyal, in awe and totally obedient to the Presidency. Civil society has been ignored as irrelevant. The press is too divided, owned and controlled by businessmen with an eye on profits and balance sheets.
The Judiciary remains the only institution that can stand up to the Executive. It has the personnel, tools and the will to defend the Constitution and the rights of the Kenyan people. It just needs to remain loyal to the people and the Constitution. It is the last line of defence against a government that has become impatient, oppressive and intolerant. The Judiciary stands between a government that wants to trash the Constitution and crush a people and citizenry that are afraid of what the government will do next. The people of Kenya must stand with and support the Judiciary. It is the only institution, through the Constitution, that can and will put the government in its rightful place.
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