In general terms, an outlaw is a person excluded from the benefit or protection of the law; a lawless person or a fugitive. But the most figurative definition is provided by the Merriam-Webster Dictionary, thus an “outlaw” is “an animal that is wild and unmanageable”.
Justin Bedan Njoka Muturi (58) may not be a modern day Robin Wood. Cursorily his background meets the bill of a law-abiding individual: A lawyer, a principal magistrate (and chairperson, Kenya Judges and Magistrates Association), and legislator; and currently the Speaker of the National Assembly, the lead lawmaking institution in Kenya.
But, it would seem, that’s as far as it goes. A national figure au fait with the law and legislative work has, in just a year serving as the 7th Speaker of Kenya’s National Assembly, distinguished himself as the face of impunity, an incarnation of everything wrong about Kenyan politics. Muturi appears to get the thrill from defying the Constitution and rubbishing court orders, once describing an injunction as “idiotic”.
“We want to respect court orders … But I do not understand how we are to obey every order, however idiotic or unconstitutional,” the former principal magistrate stated last March. “We are asking judges that before they issue their orders, they convince themselves that the same can be effected. They must pass the test of reasonableness.”
This statement, at its face value, is logic-laden – if spoken by a fugitive from the law. But it isn’t. His institution, National Assembly, has delightedly breached the constitutional principle of separation of powers between the three arms of the government, by summoning the Executive and the Judiciary. It is in hurry to bestow legislative powers on the President. Hardly all; it has defied court advise or ruling.
It was William, the Earl of Chatham, who remarked that “wherever law end, there tyranny begins”. A decade earlier, John Locke (1632-1704) made similar expression, thus “wherever law ends, tyranny begins”. That’s why if, for the sake of illustration, Raila Odinga (or Uhuru Kenyatta) had declared as “idiotic” and “unreasonable” the Supreme Court ruling on the presidential election last year, Kenya would have collapsed into bloodbath. “Kenyans can’t have so many quacks among their judges. To say the decision is idiotic so I will not obey it, is a recipe for a disaster. The consequences are dire,” says Supreme Court President Willy Mutunga.
“The Jubilee government’s first year has been characterized by an impatience with the new Constitution and a disregard for the other arms of the state, notably the judiciary which, until recently, was widely considered an independent champion of the new Constitution,” noted The Africa Confidential.
When Muturi claimed that Judiciary was issuing “idiotic” injunctions, the public may have dismissed him as a man drunk with power. That’s why the statement attracted offhand treatment. Few foresaw a systematic defiance of supreme law at the hands of Muturi. “His (defiance of the Constitution and contempt for Judiciary) is cultic,” says a former ally of the Speaker.
“He approaches issues with so much disdain. In my opinion, he lacks the requisite demeanor, character and skill to drive the legislature through this transition period. Parliament deserves a better leader.”
According to observers, Muturi possesses an insatiable Bohemian attitude towards other arms of government – Executive and Judiciary. He vainly considers himself enfant terrible. His recent actions fittingly describe a man possessed with a sense of self-importance, who regards himself almighty – above the rest. To him the Constitution is only suitable applied in a manner that meets his end and the institution he oversees.
Yet, philosophically, politics of defiance have a basis; it cannot be vanity-driven. According to observers, Muturi has reason to dare the Constitution with the destructive enthusiasm of a smitten lover. “He uses the House as an advancement of the interests of his political godfather,” says political analyst Ndung’u Wainaina, executive director of International Center for Policy and Conflict.
“He is the old school, typical Kanu lawyer. This defines his political ideology and thinking. He has failed to demonstrate that key critical thinking. He has maintained the old theme.”
Muturi – just as his colleagues in politics, Aden Bare Duale (Leader of Majority in National Assembly), Kithure Kindiki (Senate Leader of Majority), Onesmus Kipchumba and senators Murkomen and Charles Keter – considers himself Jubilee Coalition’s last line of defence. “Both the speaker … and the leader of government business, Aden Bare Duale, are unashamed presidential loyalists,” observed Africa Confidential last March.
In law school, the fundamental principle of separation of powers is basic lesson; Course 101. Its application in a democracy is universal, conventional. Indeed, it is enshrined in every civilian/democratic constitution in the world. Yet, despite this, the Speaker of the Kenya National Assembly wants the country to believe that he – and Parliament – towers above the Constitution – and implicitly, the people of Kenya who drew up the supreme law. The National Assembly is inherent with the firepower and political muscle to arm-twist institutions that appear to challenge its authority.
Sometime last year, the National Assembly decided to slash Judiciary’s budget by an astronomical Sh500 million when members of the Judicial Service Commission (JSC) declined to appear before Muturi and his subjects. This was despite a warning by the Chief Justice Mutunga that the move would cripple Juciary operations.
“What Judiciary is not telling Kenyans is that it was unable to absorb the entire amount that it had been granted for the projects in the last financial year. Why should Parliament continue adding more funds to the institution when there are other compelling requirements in other institutions keen on spending the money.”
Muturi is totally impervious to the extent to which he offends the Constitution and the Judiciary. He’s a major inflammatory agent, to rephrase Howard Gardner, author of bestselling book, Leading Minds: An Anatomy of Leadership.
According to political analysts, Muturi rose to his enviable position by his association with President Uhuru’s well-oiled campaign machine. He was one of its key components, according to The Star newspaper. His mantra, “all politics is local”, linked to ethnic voting calculus spoken in 2007, gave a pointer to his political direction and appears to guide his execution of duty as speaker, according to observers.
“He allows just a few pre-selected and pre-screened MPs on the government’s side to contribute to debate. He has silenced the Opposition. Never has a Kenyan Parliament been led by a more inept, incompetent, dull, unknowledgeable and ignorant Speaker. This is the result you get when greatness is forced on a political dwarf,” senior counsel Ahmednasir Abdullahi wrote in the Sunday Nation newspaper last August.
Although Kenya’s leaders pursue socio-ethnic politics, some parliamentary speakers have generally been independent minds – save for those who served under the then President Daniel arap Moi. Humphrey Slade (1967-70), Fred Mati (1970-88), and Kennedy Marende (2008-2012), resisted the allure of political partiality, negative tribalism and sectarianism. But Marende’s successor ”is a demonstration of socio-ethnic loyalty”, according to Wainaina.
“The speaker is supposed to provide clarity. But what we have is a catastrophe in the name of a speaker. This socio-ethnic loyalty has created more harm.”
Charles Nyachae, the chair of the Commission on Implementation of the Constitution (CIC) has isolated Muturi’s decisions that breach the law – from the passage of contentious media bills to summoning cabinet secretaries. In the case of media bills, Nyachae observed, “in effect, the Speaker’s ruling unconstitutionally bestows legislative power on the President! (It has) far reaching ramifications indeed”.
Last month, Nyachae warned that Muturi wasn’t fit for the position he now holds. “Mr Muturi ought to be declared unfit to hold office over his remarks that Parliament would disobey court orders … Anyone who disrespects the Constitution should he be eligible to hold office?”
Yet, even as Muturi’s critics isolate his failures, the National Assembly is a shame. It is clearly pre-occupied with extraneous matters – Constituency Development Fund and county development boards – rather than its core business, that’s oversight, legislation and formulation of policies. “Parliament has no depth of interrogation, has limited understanding of the paradigm shift (brought about) by the new Constitution,” says Wainaina.
“Parliament is a threat to the Constitution and itself. It is cannibalising itself and the new law, gradually attacking the heart of the new Kenya.” By implication, the current parliament is relapsing to the single-party era in which blind loyalty to the president and ruling party was the order. It is not conscious of the fact that the new Constitution has changed the way the country is governed. “Old mindset, old thinking, limited understanding of the new order,” a former MP summs up the conduct of the National Assembly as well as the Senate.
Is Kenya’s 11th Parliament a rogue institution?
By summoning cabinet secretaries, it is clearly breaching the Constitution. But this is not happenchance. Parliament did a dress rehearsal last year when, in total disregard to the supreme law, attempted to subpoena members of the JSC, including its chairman, Chief Justice Mutunga. “Parliament itself is part of the problem, it’s a rogue parliament,” says CORD leader Raila Odinga.
In their zigzagging approach to issues, and for being “lazy and greedy” as London’s Guardian newspaper wrote last year, Kenyan MPs decided to summon the Executive (cabinet secretaries) . President Kenyatta had to reprimand Muturi at State House. Interestingly, in a show of brouhaha, Parliament through MP Jakoyo Midiwo, appeared to defy the President.
The 11th Parliament is transforming itself into “nothing less of a big meeting of more or less of idle people”, to rephrase Walter Bagehot, British fabled essayist.
Even if the law doesn’t serve the self-interest of an individual or institution, it has to be respected by all and sundry.
Muturi is well aware the law has to be respected. He said as much last year at the University of Nairobi. “Constitution making and its implementation is an enormous challenge that requires the coordination, consensus building, consultations and above political goodwill. It is not the arena for populism and political grandstanding.”
But, power corrupts. Lucius Accius (170-90), Roman tragic poet and literary scholar, wrote, thus “let them hate as long as they fear”. The Speaker of the Kenya National Assembly has failed to walk the talk. Law experts are convinced he is not fit to hold this powerful office.