By Frankline Mbogori
In America’s post-colonial history (245 years), only one court ruling has ever been disobeyed by an American President. Even then, that order was issued during wartime. In 1861, at the height of the American civil war, Abraham Lincoln defied Chief Justice Roger Taney’s ruling in Ex Parte Merryman, overturning the President’s wartime suspension of habeas.
This case tested the ability of the American President to disobey judicial orders when he believed such orders to be erroneous. Since that time, many constitutional scholars have argued that a President can disobey a court order when it is clear that the court has made a flagrant mistake. Some think that Ex parte Merryman met that standard.
In stark contrast to the admirable record of constitutionalism and rule of law in America, obedience of court orders has been the exception rather than the rule in Kenya’s short post-colonial history. One may struggle, for example, to recall the last time the Jubilee Government emphatically embraced unpopular judicial pronouncements.
The Judiciary is unlike other arms of government. Alexander Hamilton described it as the branch that is “least dangerous to the political rights of the Constitution” because it has the least “capacity to annoy or injure” other branches. While the 2010 Constitution has created what some see as three co-equal arms of government, the Judiciary is practically the weakest branch of them because, as Hamilton observed centuries ago, it “has no influence over either the sword or the purse.”
“The Executive not only dispenses the honors, but holds the sword of the community. The Legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The Judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatsoever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the Executive arm even for the efficacy of its judgments.”
The celebrated French philosopher Montesquieu, speaking of the three branches, said the “…Judiciary is next to nothing.”
While the Judiciary may be seen as the weaker arm of government, it plays a very critical role in constitutional democracies. The most important function of the Kenyan Judiciary is the protection of the rights of the people as enshrined in the Bill of Rights. In order to achieve this objective, courts must enjoy complete independence, particularly from the Executive branch. Yet, in Kenya, the Executive is the preeminent source of threat to the rights of the citizens. To accomplish its sacred duty of holding power wielders accountable, the Judiciary must necessarily be seen to be detached from the Executive.
Kenya has come a long way since the days when Attorney General Amos Wako infamously announced that the President was above the law. The assault that former President Moi visited upon the Judiciary is not a distant memory. Every day, we see concerted attempts by those in power to claw back on the progress made in entrenching judicial independence. The 2010 Constitution has attempted to ring fence the institution of the Judiciary and the office of the judge from executive manipulation.
The history of interference with judicial independence in Kenya is a chapter many would wish to forget. In 1988, judges lost security of tenure and the President became the main actor in their appointment, which made the Judiciary a near extension of the Executive branch. The Judiciary was starved of financial resources for its smooth operation as an independent arm. Judicial officers were poorly remunerated and unmotivated.
No serious member of the private bar considered the Judiciary as a viable career option. In any case the process of hiring judges and magistrates was characterized by nepotism, favoritism and patronage. The Judicial Service Commission (JSC), responsible for hiring of judicial officers, was composed of the Chief Justice, the Attorney General, two judges appointed by the President, and the Chairman of the Public Service Commission.
All JSC members were presidential appointees. This was akin to the President doing the recruitment of judges himself. The judiciary was thus packed with KANU-friendly judges who would rarely rule against the Executive. Chief justices used to be close allies of the President. It is this history that inspired the many progressive provisions of the 2010 Constitution on the Judiciary.
JSC under siege
Throughout his tenure as President, Uhuru Kenyatta has toiled, with some success, to make the JSC an instrument of the Executive in his concerted assault on judicial independence. Under the 2010 constitutional scheme the JSC is designed to operate as an independent body incapable of substantial manipulation by external forces. The JSC is composed of the Chief Justice as chairman of the commission; one Supreme Court judge; one Court of Appeal judge; one High Court judge and one magistrate; the Attorney-General; two advocates elected by LSK members; one person nominated by the Public Service Commission; and two non-lawyer members, appointed by the President with the approval of the National Assembly, to represent the public. The three Judges and a magistrate are elected by their peers to represent them in the commission.
Throughout his tenure as President, Uhuru Kenyatta has toiled, with some success, to make the JSC an instrument of the Executive in his concerted assault on judicial independence. Of the eleven (11) members of the commission, the President appears to be in effective control of seven (7); only the three judges and the magistrate would be said to be outside the orbit of the President, although former Chief Justice Willy Mutunga says that the elections of the representatives by judges and magistrates was “riddled with corruption.”
On paper, the diversity of representation in the JSC would make it impossible for any one entity to infiltrate and control the commission. Realistically, however, the Jubilee regime has used every trick in the book to convert the JSC into an instrument of the regime. Given the near impervious constitutional design of the commission, it has not been easy for the Executive to have its tentacles of influence felt within it. As things stand, though, the JSC appears to be a captive institution. Of the eleven (11) members of the commission, the President appears to be in effective control of seven (7); only the three judges and the magistrate would be said to be outside the orbit of the President, although former Chief Justice Willy Mutunga says that the elections of the representatives by judges and magistrates was “riddled with corruption.”
The question then becomes: how did this infiltration happen? The answer lies in the appointment of the Law Society of Kenya (LSK) representatives and the chief justice. The first LSK representatives to the post-2010 JSC were the fiery lawyer Ahmednasir Abdulahi and advocate Florence Mwangangi. Their tenure was characterized by stellar performance and many within the legal circles and the general public agree that they delivered on their mandate. Mr Abdullahi was particularly viewed as fiercely independent and near uncompromisable. Later on Prof Tom Ojienda and advocate Mercy Deche would continue with this splendid legacy.
LSK members appear to have dropped the ball when Prof Ojienda narrowly lost the election to advocate Macharia Njeru. Many observers viewed commissioner Njeru as a government project. The harassment of Prof Ojienda by the police in the middle of the campaigns was seen as an attempt by the Government to have a compliant LSK representative at the commission. Mr Njeru has done little to dispel these suspicions. If anything, his behavior in office may have played a significant role in reinforcing these fears. His attempt to push then Chief Justice David Maraga out of office before the expiry of the CJ’s term is particularly worrying. Furthermore, the frustrations that the LSK has faced in its unsuccessful attempt at electing its female representative to the commission have some elements of state machinations.
Enter Martha Koome
I must confess that I have never met Martha Koome and therefore I do not know her at a personal level. The record however is clear that she is an accomplished advocate with solid reform credentials. She was an active advocate for human rights, good governance and multiparty democracy during the dark days of Moi. She is a decorated warrior of the second liberation. She has been active in the Law Society both in Kenya and East Africa, getting elected as a council member of the LSK in 1993-1996. She participated in the constitutional review process where she chaired the thematic area on the Bill of Rights at some point. Koome has also served as the elected Chairperson of the Kenya Magistrates and Judges Association. In 2020 she emerged as a runner up United Nations person of the year. It can’t get better than this.
With such an impressive background many people don’t see how she would agree to take part in an illegal and unconstitutional process. On June 4, 2021 President Kenyatta Gazetted 34 out of the 40 judges he had declined to appoint since 2019. The JSC had recommended the appointment of the 41 judges but one judge has since passed on. The President’s decision to leave out six candidates, among them the celebrated High Court judges George Odunga and Prof. Joel Ngugi, has caused a huge outcry from various sections of the Kenyan society. Many believe the two were overlooked for their unwavering fidelity to the law in matters where the government has been a party. The judgment declaring the BBI process unconstitutional, in which the two judges formed part of the bench, was particularly a huge blow to the President. The President has fashioned the BBI as his pet project as he approaches the end of his term in office. The LSK termed the move by the President unlawful and an act of impunity.
The question begs, why did Koome partake in such a discredited process (most recently, on July 26th, CJ Koome expressed her opposition to a case challenging President Uhuru Kenyatta’s refusal to appoint six judges on grounds that the case filed by Katiba Institute is bad in law, fatally defective and an abuse of the court process)?
The answer to this question lies in the fact that the process of recruitment of the Chief Justice and superior court judges is no longer impervious to Executive manipulation. As we have demonstrated, the JSC has been infiltrated by the Executive and is now a captive institution, with the President playing a near decisive role in determining who becomes the CJ. Any serious candidate for the job would have to think twice before doing any act or omission that would be seen as antagonistic to the Executive in general, and the President in particular. It is against this backdrop that Koome’s appointment must be seen. Her role in the 2017 presidential election, where she sat in an Appeal Bench which reversed a High Court ruling nullifying the appointment of election officials, has particularly been criticized. Many believe that CJ Maraga ought to have been consulted before the appeal bench could sit at odd hours in such a significant matter of public interest. I nonetheless find it difficult to believe that, as a matter of doctrine, Koome is intent on presiding over a Judiciary that is subservient to the Executive. This is not to excuse the CJ from her participation in the swearing in event. In fact, her acquiescence to Executive manipulation in this matter has created a terrible blueprint for future presidents to follow.
For the total skeptics who view Koome’s act as the beginning of the end of judicial independence, their fears are not unfounded. In fact, there are parallels, perhaps coincidental, between the circumstances surrounding the appointment of Koome as the Chief Justice to those surrounding the appointment of Zacchaeus Chesoni to the same office in 1997. While Chesoni, as then chairman of the Electoral Commission of Kenya (ECK), had delivered victory for Moi in the 1997 presidential election, Koome’s appointment is viewed in some quarters as a token of appreciation for her role in the Appeal decision that clothed the discredited IEBC officers with legal legitimacy.