In this second instalment in the series, I address the pertinent issues that inform the interviews for the chief justice, the deputy chief justice and a judge of the Supreme Court from the perspective of the most powerful man in Kenya, President Uhuru Kenyatta. I also highlight the threat to the rule of law posed by his unhinged sidekicks. President Uhuru is very different from his predecessor Mwai Kibaki and their views and relationships with the Judiciary are dialectically opposed.
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Kibaki’s views were shaped by the history of a Judiciary that stifled and abused the rights of Kenyans when he was an opposition leader and in the trenches against the oppressive Kanu regime. He was all for radical change of the Judiciary and wholeheartedly supported it. Five years ago when the JSC appointed Dr Willy Mutunga, Kibaki kept off the process and allowed the process to run its full constitutional course.
Don’t bet that Uhuru will do the same! The President is on the other side of that political divide. He wants to see a Judiciary that “cooperates” with government and “respects” the views of the other arms of government. Further, Uhuru is forceful, and whereas he grudgingly tolerates the independence of the Judiciary, he has too many sidekicks with their own personal agenda that hijack twist the idea of his vision and relationship with the Judiciary.
President Uhuru Kenyatta’s policy attitude and engagement with the Judiciary and the Judicial Service Commission (JSC) during his presidency has primarily been shaped by two momentous events. First, he was both shocked and pleasantly surprised by the Supreme Court’s judgment that dismissed Raila Odinga’s election petition that sought to thwart his election in 2013. Shocked because he saw a powerful court with enormous constitutional oversight, run by independent judges he had no idea who they were. Pleasantly surprised because he was truly taken back by the fairness of the court and the fidelity it had shown to the Constitution.
Still smarting from double defeat
Secondly, the un-ceremonial dismissal of Gladys Boss Shollei, the former Chief Registrar of the Judiciary by the JSC was not taken well by State House. For reasons that history will probably reveal one day, Uhuru and Deputy William Ruto made every effort to spare Shollei from the guillotine despite the gravity of the allegations she faced, and the Barbie-girl-like attitude she extravagantly displayed. Immediately after her dismissal, and following a sham and state-sponsored hearing, the National Assembly, at the instigation of Shollei’s local Member of Parliament, who also chairs the Legal Affairs Committee, Samuel Chepkong’a, recommended the removal of six members of the JSC. President Uhuru, on the recommendation of the Attorney-General Githu Muigai, gleefully appointed a tribunal composed of members of the Jubilee Party Youth Wing, and headed by the recycled and ever-green Aaron Ringera, to undertake a sham trial. The High Court quashed the process as being unconstitutional. Uhuru has, to date, never forgiven the JSC and the Judiciary for this double defeat.
Both events rattled the President. They brought closer home the truism that in matters of the Judiciary, the President is not the top dog in town. Despite the enormous constitutional and political powers he wields, Uhuru is impotent when it comes to judicial recruitments and the management of the Judiciary’s internal affairs. The only ceremonial role he plays is to preside over the swearing-in ceremonies of judicial officers at State House. This constitutional reality has annoyed both the President and his advisers during his short tenure as president.
As the JSC starts the recruitment for the offices of chief justice, deputy chief justice and a judge of the Supreme Court, President Kenyatta and his handlers have not forgotten these embarrassments to the emperor. The President is all too aware of the importance of these offices. He is also aware of the powers of the JSC and knows just too well that some members he variously tried to remove still sit in the commission, and will participate in the appointment of the chief justice. For the President and these members of the JSC, the recruitment exercise is a zero sum game.
The attitude the president takes of the recruitment is further clouded by informal structures of Uhuru’s government that in a way will define his presidency. Uhuru has two kinds of legal advisers. He has formal and informal advisers. The formal advisers are the Attorney-General Prof Githu Muigai and his constitutional adviser Mr Abdikadir Mohamed. He then has the informal legal advisers who have the ear of the President on matters of law and politics. These include Solicitor-General Njee Muturi, Speaker of the National Assembly Justin Muturi, a High Court, and two senior judges. All three judges hail from Kiambu County. This group is popularly known as Uhuru’s “law politburo” or “LP” as the members fondly call it.
One of these judges was Dr Mutunga’s chief ideologue and his quick defection not just stunned the reformers in the Judiciary but also shows the gravitational pull of ethnicity in Kenya’s societal set-up, be it in politics or in the Judiciary. The involvement of three top judicial officers in what is obviously an ethnically-inspired agenda for the Judiciary and as subcontractors of a larger group of the political elite not only raises profound issues for the independence of the Judiciary, but also brings into sharp focus the deep fault lines of ethnicity in this important institution.
That these judicial officers can openly identify themselves more with the political agenda of an ethno-political group and in total defiance of their constitutional oath of office should give sleepless nights to all Kenyans who thought the new constitutional order had brought about a complete paradigm shift.
Like in many matters of state, President Uhuru relies more on the informal structures of his government than on formal ones, and since the “law politburo” basically sees issues from the prism of ethnicity and the broader political imperative for President Kenyatta to control the Judiciary, the President is subtly influenced on matters law from that perspective. This group is hawkish and uncompromising in its agenda.
It is widely known that the hawks peruse a narrow jingoistic agenda when it comes to these critical offices in the Judiciary and has shoved aside both Githu and Abdikadir, who are the doves in matters of law and the political derivatives. So, in so far as the recruitment for these offices is concerned, Githu and Abdikadir have absolutely no role. The “law politburo” is running the show.
But Kenyans must not lose sight of the irony. The President, in terms of personal predisposition and political philosophy, actually shares the values of liberal and limited institutions as advanced by his formal advisers. He wants the best candidate to get the job. He has no favourite candidate and he doesn’t want the politics of the country to influence the recruitment. But it is widely believed that his views notwithstanding, Uhuru has given the green light to his “law politburo” to micromanage the process and deliver an acceptable candidate of their choice.
The government has crafted a three-pronged strategy or options in the recruitment. First, the number one and two choices for the office of the chief justice were initially identified as Justice JB Ojwang and Aaron Ringera, in that order; this remains so. They identified candidates who, according to them, provided the ideological anti-thesis of Dr Mutunga in terms of history, values, principles and outlook from a constitutional law perspective. They settled on candidates who, in their view, the system could trust and rely upon if push came to shove. It wasn’t lost to keen observers of history why they picked Ojwang and Ringera. The LP rationalised their choice on the premise that both Ojwang and Ringera are great believers in a strong “presidentialism” as a constitutional legal concept.
Both candidates didn’t make to the shortlist by the JSC for reasons that are now well known. Ringera was not shortlisted five years ago, and nothing fundamentally changed for his personal fortune since then, apart from playing a peripheral role in offering clerical services to lawyer Fred Ngatia, who was the lead counsel for President Kenyatta in the presidential petition. Ojwang, on the other hand, is involved in a number of ongoing internal cases with the JSC.
The failure to shortlist Ojwang and Ringera rattled teapots and created an immediate crisis in the corridors of power. It caused pandemonium in the sense that government suddenly realised it had very limited leverage in the JSC after all, despite the fact that it can call on the loyalty of 70% of its members. The inability by the government’s subcontractors to influence the final shortlist greatly undermined their standing before the President and raised the alarming question on their ultimate strategy if their two preferred candidates were so easily eliminated in the first round. They tried to have the JSC review its decision and were again defeated.
The second strategy the government is pursuing is that it has embraced at least three of the six candidates shortlisted by the JSC for the office of the chief justice. The government is comfortable with any one of the three becoming chief justice. Part of this strategy by government is the use of surrogates to drum support for their preferred candidates and dim the prospect for the others. The targeted candidates are seen to represent the values and principles Dr Willy Mutunga and the Constitution espouse.
Exhorted promises of concessions
In adopting the three candidates, a number of tests had been run against each of them, and critical concessions have been extracted. More critical, certain candidates have issued pledges on a number of burning issues that are critical to the administration of justice. This is startling! The government wants a candidate who is not an activist, according to them. It wants a chief justice who will respect the Executive, Parliament and “uphold separation of powers”. A condition for the government supporting the candidates is the firm pledge that the Constitutional and Human Rights Division of the High Court will be disbanded, and that Justices Odunga and Louis Ong’uto to be transferred from Nairobi.
The third strategy is to the nuclear option. They want to kill the nominee of the JSC in parliament and restart the process afresh. And this is why National Assembly Speaker Justin Muturi is an important player in this scheme of things. The government has overwhelming numbers in parliament, which it will mobilise to defeat a nominee that isn’t to their liking. It must be appreciated that Ringera and Ojwang remain their preferred candidates for the office of chief justice. They are confident that they can bar the candidate nominated by the JSC by October and then force a fresh recruitment in early November. That this strategy has the potential to create a constitutional crisis when Kenyans are preparing to go the polls in 2017 is not a major concern for those who conceived and are now executing the government’s strategy.
Where does DP Ruto stand in all this? Although the DP is more hands-on than the President, He has taken a fairly low-key interest in the matter. In a country where tribal affiliation is everything, Ruto, unsurprisingly, has not taken a very active stand on the recruitments. But could this be because the deputy president does not have a suitable or preferred candidate? The answer is yes! First, the DP doesn’t have a credible candidate from his Rift Valley backyard that can withstand any serious scrutiny and interrogation that the offices come with. They are only two or three credible judges in the High Court from his community, but these judges have just recently joined the Judiciary and have many years to go before the can mount a credible claim to the offices.
Second, the DP is more interested on whether he can find an heir to the Supreme Court seat vacated by Justice Philip Tunoi. It is believed that he prefers a judge from the High Court that hails from the Rift Valley. As to whether the judges that have the tacit support of the DP have any chance for the vacant positions of a judge of the Supreme Court, I will appraise this scenario later in the series.
Dr Mutunga once famously said that his tenure and the process that led to his appointment was the first time in the history of Kenya that ordinary Kenyans wrested the power to appoint a chief justice from the president and appointed a man of their choice. It was also the first time that an ordinary Kenyan without any political connection controlled an entire arm of government, much to the dislike of the political establishment.
Kenyans must not allow the reversal of this historic gain. We must never be complacent. We must not allow the President to appoint a chief justice of his choice/liking. They are too many appointees who run his errands and jump to his whims and answer to all his caprice. Let us not give him one more errand boy/girl by way of our next chief justice.