LSK under Kibaki: Era when lawyers became entangled in major contradictions

By Gilbert Muyumbu

*Setting the context: This is the first of a two-part instalment in this continuing serious

Perhaps nothing sums up the promise of the NARC administration better than the memory of then newly appointed Tourism minister Raphael Tuju throwing officials of then just defeated ruling party, KANU, out of the Kenyatta International Convention Centre (KICC). Tuju’s show was one of the first acts of reclaiming public property from misappropriation under President Daniel Moi’s KANU government, which had turned the publicly-funded KICC into its party headquarters. Through Tuju’s symbolic act, NARC, which campaigned on a platform of reclaiming public property lost to corruption, was asserting the iconic building belonged to the Kenyan public rather than a political party. 

President MWai Kibaki’s NARC administration promised to reform the country and set it on a path to political self actualization. The administration’s interaction with the rule of law came to take on three distinct dimensions. The first involved continuing with the heritage of rule of law bequeathed to the administration by the preceding Moi administration, the most important of which was the heavily amended Independence (Reginald Maulding) Constitution of 1963. The second consisted of the rule of law regime that emerged in the aftermath of the 2008 Post-Election Violence (PEV) — the most important institution emerging during this dimension was the Committee of Experts on Constitutional Reforms (CoE). The third dimension emerged with the constitutional changes that came with the 2010 Constitution. 

Each of the three dimensions exposed the Kibaki administration’s attitude towards the rule of law. Under the first, the administration, early on in its life, boosted the rule of law by instituting several initiatives to reverse the Moi era’s official lawlessness. Among these were the setting up commissions of inquiry into at least two major public scandals of the Moi era, Goldenberg (chaired by Justice Samuel Bosire) and irregular/illegal land acquisition (chaired by lawyer Paul Ndung’u). As well, the new administration strengthened the anti-corruption legislation by enacting the 2003 KACC (Kenya Anti-Corruption Commission) Act, giving it the impetus to recover stolen public assets. 

Kibaki’s government embarked on two major reform initiatives aimed at boosting the rule of law in the country. These were the Constitution review process led by the Prof. Yash Pal Ghai-led Constitution of Kenya Review Commission (CKRC) and the so-called radical surgery of the Judiciary, spearheaded by a Judicial Commission headed by Justice Aaron Ringera. Whereas the CKRC process was geared towards giving the country a new constitution, which President Kibaki had promised to enact within the first 100 days of assuming office, the radical surgery was meant to rid the Judiciary of officials accused/suspected of unprofessional conduct. 

Lost steam

In addition, Parliament, where KANU was a minority party for the first time in Kenya’s independence history, reasserted itself by instituting several oversight initiatives to boost the rule of law. A major example was the formation of a parliamentary select committee in early 2003 to inquire into the assassination of former Foreign Affairs Minister Robert John Ouko in February 1990.

Unfortunately, the Kibaki government soon abandoned these noble early efforts. For starters, the CKRC process stalled, largely due to the emergence of significant differences within the ruling NARC coalition. Two factions formed: the National Alliance of Kenya (NAK) led by Kibaki and the Liberal Democratic Party of Kenya (LDP) led by Raila Odinga. Whereas the LDP faction pushed for a parliamentary system, the NAK faction insisted on a strong presidential system. When they failed to compromise, the NAK faction walked out of the CKRC proceedings, which were in their final stages at the Bomas of Kenya conference center in Nairobi. The CKRC went ahead and finalized the draft of the Constitution agreed to by delegates at the Bomas conference, with Prof Ghai handing over the draft Constitution to Attorney General (AG) Amos Wako. 

Upon receiving the draft of the proposed CKRC (popularly called Bomas) Constitution, the Kibaki administration constituted a new committee led by AG Wako and lawyer Abida Aroni to ‘fine-tune’ the Bomas draft per the position of the NAK faction. The Wako/Aroni committee came up with a newer version of the Constitution — the so-called Kilifi/Wako draft — which was then subjected to a referendum in 2005. The draft was voted against by a simple majority of Kenyan voters, signifying a halt, albeit temporary, to the quest for a new Constitution. The country continued with the Independence Constitution.

Judicial radical surgery

The second reform initiative which ran into headwinds was the ‘radical’ surgery. Granted, the Ringera-led commission listed some judicial officials suspected of having engaged in professional misconduct and had them either resign or face a tribunal headed by retired Chief Justice Majid Cockar to defend themselves against accusation leveled against them. The biggest casualty of the process was Chief Justice Bernard Chunga, who opted to resign rather than face the Cockar-led tribunal. However, the success of the process was called into question after it got entangled in litigation, with at least three of the listed high court judges successfully litigating against their listing by the commission. Further, the process was caught up in politics, with critics dismissing it as having exhibited ethnic favoritism, making unsubstantiated claims against judicial officials, and being riddled with many inconsistencies.

The third reform initiative which stuttered under the Kibaki administration was the fight against corruption. This direction began to falter due to fights to control the Kenya Anti-Corruption Commission (KACC). The Commission had been one of the products which emerged from pressure on the Moi administration by external accountability actors, particularly the World Bank and the IMF. As part of its efforts to deal with corruption cases of the Moi era, the Kibaki administration appointed new directors into the Commission soon after ascending into power. The directors were first ratified by both the Anti-Corruption Advisory Board chaired by LSK chairperson Ahmednassir Abdullahi and Parliament before their appointment. They included Aaron Ringera as head of the KACC, with Fatuma Sichale, John Mutonyi, and Smokin Wanjala as his three assistants. 

However, the Kibaki administration rejected the nomination of a fourth assistant director, Julius Rotich. It cited concerns over Rotich’s integrity and lack of adequate qualification. The administration stated that it had raised these concerns with the Abdullahi-led Advisory Board, but they had been ignored. In reaction to the administration’s rejection of Rotich’s appointment, Abdullahi pulled LSK out of the Advisory Board, citing Executive interference in the workings of the Anti-Corruption Advisory Board. The whole episode lost KACC the credibility to fight corruption and set it on a path of damaging litigations, which eventually made it unable to continue its operations.

Like master like student 

The fourth area of failure involved the commissions of inquiry that the Kibaki administration had set up in its earlier days in power to investigate past acts of impunity. A pattern emerged in which the commissions carried out investigations, but their recommendations were not followed through. This was the case with the three Commissions of Inquiry into the Goldenberg scandal, the illegal/irregular allocations of public land, and the assassination of former minister Robert Ouko.

Having abandoned the path of reforming the country and dealing with past acts of impunity, the Kibaki administration engaged in its excesses, mirroring those of previous administrations. Three of these stood out, namely: high-profile corruption, murders of suspected state ‘enemies’, and election mismanagement. The most high-profile case of corruption under the administration was the 2003 Anglo leasing scandal involving 18 security-related contracts, collectively worth Sh55 billion, meant to supply forensic facilities, security equipment, and support services for various security agencies in the country. It was initially unearthed by Ntonyiri MP Maoka Maore in April 2004 and led to investigations by both Parliament and the Kibaki administration’s Permanent Secretary for Governance and Ethics, John Githongo. The investigations hinted at high-profile Kibaki government officials as being behind the scandal. 

In response, the administration attempted to stop investigations into the scandal internally by the KACC and Githongo, and externally by the UK’s Serious Fraud Office and authorities in Switzerland. It then indicated that those behind the scandal had offered to return the money they had misappropriated. However, this was contradicted by the fact that the administration continued to make payments to the companies involved in the scandal. Eventually, between November 2005 and February 2006, the administration sacked at least two ministers who had been adversely mentioned in the scandal. It also made efforts at prosecuting a few of the suspects. Other scandals of a much lesser profile were to characterize the rest of the administration’s tenure.

As for murders, three stood out. The first was that of university lecturer Chrispine Odhiambo Mbai in September 2003. The Truth, Justice and Reconciliation Commission (TJRC) report revealed that Mbai was killed due to his political views on Devolution. The second involved the murder of human rights activists Oscar King’ara and John P. Oulu in March 2009. Suspected security agents killed the duo due to their work highlighting the crackdown on the adherents of the Mungiki sect by police officers. The third was the murder of Muslim cleric Aboud Rogo in July 2012. His death was tied to his links with the Somalia-based Al Shabaab terrorist group. Besides actual murders, fear of assassination against perceived opponents of the Kibaki administrations was rampant, especially with the coming into the country of the controversial pair of Artur brothers through sponsorship by powerful government officials and politically connected individuals. So rampant was the fear that Githongo, being a high-profile whistleblower of the Anglo leasing scandal, fled the country into self-exile in the UK for fear of being killed.

Sins against the people

Perhaps the excess of the Kibaki administration that had the greatest consequences for the country was the mismanagement of the 2007 General Election. The 2002 elections that had ushered the Kibaki administration into power had been managed under an arrangement spearheaded by Parliament called the Inter-Parliamentary Parties Group (IPPG) initiative. The initiative provided balance in both government and the opposing sides in the Electoral Commission of Kenya (ECK), making the body more legitimate across the political divide. This initiative was largely why the 2002 election was hailed as Kenya’s freest and most transparent. 

Unfortunately, as the 2007 election approached, the Kibaki administration abandoned this initiative. Using the massive powers over the ECK conferred on it by the Independence Constitution, the administration unilaterally constituted the commission, reducing Opposition representation in the ECK. Secondly, the administration exploited the control it enjoyed over security organs and deployed sections of these organs as polling agents in Opposition strongholds. 

Collectively, these measures were perceived to have skewed the elections in favor of the Kibaki administration. When the ECK declared President Kibaki, the Party of National Unity (PNU) candidate, as the winner of the 2007 Presidential Election, Raila Odinga, the candidate for the Opposition’s Orange Democratic Movement (ODM) rigorously disputed Kibaki’s win. The resulting standoff between PNU and ODM supporters led to post-election violence in which more than 1,000 Kenyans were killed, with the violence and general breakdown of law and order attracting international mediation. 

A key product from the mediation was the National Dialogue and Reconciliation Agreement (National Accord) which both PNU and ODM signed. It provided four agenda items that formed the basis of pulling the country out of the post-election crisis and putting it on a reform path. These consisted of Agenda 1 – restoring fundamental rights and freedoms and an immediate end to violence; Agenda 2 – which dealt with the humanitarian situation and aimed at promoting healing, reconciliation, and restoration; Agenda 3 – which sought to solve the immediate political crisis; and Agenda 4 – which focused on long term constitutional, institutional, land and legal reforms. 

Constitutional review

Collectively, the four agenda items ushered in the second dimension in the Kibaki administration’s engagement with the rule of law in the country. Each item provided specific institutions and processes with major implications. From the fourth agenda item, the most critical institution was the CoE. Chaired by lawyer Nzamba Kitonga and guided by the 2008 CKR Act, the CoE was perhaps the most successful initiative in this dimension. 

The CoE referenced both the earlier Bomas and the Kilifi drafts and drew a Harmonised draft Constitution. The Harmonized draft was subjected to public input, but more significantly, revised by a parliamentary select committee on constitutional review sitting in Naivasha, which came up with the Naivasha draft. The Naivasha draft, plus public input in the Harmonized draft, was again reviewed by the CoE, which came up with a proposed Constitution of Kenya. The proposed Constitution of Kenya was subjected to a referendum in June 2010 and was voted for by most Kenyan voters. It was officially enacted as Kenya’s Constitution on August 10, 2010.

The passage of the 2010 Constitution had tremendous ramifications for the rule of law in Kenya. Not only did it usher in the third dimension in the relationship between the Kibaki administration and the rule of law, but it also significantly reconfigured the relationship between the Executive and the rule of law institutions. In promoting judicial independence and reinforcing the separation of powers, the new Constitution enacted at least one major change: changing the structure of the judiciary by introducing the Supreme Court of Kenya (SCOK). Before the change, the highest court in Kenya had been the Court of Appeal. With the change, the Judiciary acquired an important additional level that helped infuse a hierarchy necessary to counter Executive domination. 

Beyond changing the Judicial structure, the new Constitution also demanded at least two major institutional changes. First, it required then Chief Justice Evan Gicheruto to resign. In his place, a new Chief Justice would be recruited in a process spearheaded by the newly constituted Judicial Service Commission (JSC), with little influence or interference from the Executive. The JSC recruited Willy Mutunga as the first Chief Justice under the new Constitution. Before the JSC took over the process, however, the Kibaki administration attempted to appoint Court of Appeal Justice Alnashir Visram as the new Chief Justice. This was successfully contested by Prime minister Raila Odinga. The JSC-led process became one of the first steps towards making the Judiciary independent of the Executive.

Secondly, the new Constitution demanded a new vetting of the Judiciary, to clear the institution of any judges deemed unfit to serve within it. Following this directive, the Kibaki administration constituted a Judges and Magistrates vetting board chaired by lawyer Sharad Rao. The board went ahead to investigate and declare some judicial officials as unfit to serve in the Judiciary. The overall expectation from the vetting was that it would improve the integrity of the Judiciary. 

As for Parliament, the new Constitution set up at least three significant changes, reinforcing the institution’s independence from the Executive. First, it re-introduced a bicameral parliamentary system with both the Senate and the National Assembly. Although the senate’s powers were whittled down in Naivasha by the parliamentary select committee, it still retained a significant role, especially protecting the newly instituted devolved governments. Secondly, it provided a complete separation of Parliament from the Executive by abolishing having the cabinet and assistant ministers appointed from among the MPs. Thirdly, it provided for increased oversight on the Executive through setting up parliamentary committees. 

To reinforce the separation of powers, the Constitution provided for additional checks and balances institutions in addition to the reconfigured Judiciary and the bicameral Parliament. This consisted of reinforcing already existing institutions such as the Kenya National Commission on Human Rights (KNCHR), the Kenya National Audit Office (KENAO), and the Ethics and Anti-Corruption Commission (EACC). It also involved establishing new institutions such as the Office of the Director of Public Prosecutions (ODPP) – separated from the Attorney General’s office, the Commission for Administrative Justice (CAJ, also known as the Ombudsman), the Gender and Equality Commission, and the Controller of Budget, among others. 

In sectors where Executive dominance had been particularly perverse such as the security and electoral management sectors, the new Constitution provided new elaborate institutions. For instance, it provided for the Independent Police Oversight Authority (IPOA) and the National Police Service Commission (NPSC). Whereas the IPOA provided independent oversight on police behavior by investigating and sanctioning the abuse of power within the service, the NPSC was to ensure professionalism in the recruitment and management of personnel in the service. 

Electoral reforms

As for the electoral management body, the 2010 Constitution provided for an Independent Electoral and Boundaries Commission (IEBC). IEBC recruited commissioners through a three-way process that commenced with recruitment by a panel constituted by the President, then validation by Parliament and appointment by the President. Once appointed, the commissioners served a fixed period, with little direction from the Executive or any other institution. The new institution held its first election in 2013, resulting in litigation at the newly established Supreme Court of Kenya, in which it was accused of mismanaging the election. Nonetheless, it was absolved of intentional wrongdoing, especially the suspicion that it was still under Executive manipulation.

The Kibaki administration faced the most dynamic rule of law of any Kenyan administration. Transitioning between the dimensions set out above, it oversaw the period during which the country revised its social, political and legal institutions, populating it with new institutions and reinforcing older ones. 

The new setup gave the country a dynamic rule of law context in which Executive power began being vigorously contested, reducing its ability to dominate every facet of Kenyan life. In the second part of this article, we shall examine how the LSK interacted with the Kibaki administration and the specific actions it took to either challenge or support the administration in promoting the rule of law under the dynamic conditions provided by each of the three dimensions. 

— Muyumbu is researching the Law Society of Kenya’s history for a PhD from Egerton University. The second part of LSK: Footprints will run for six months starting July – December 2021. Reach him on gilbertmuyumbu@gmail.com for any feedback on this and any other article in these series.