The Star (Nairobi)

18 August 2012

Kenya: Threat to Chief Justice Mutunga Not in Order

opinion

"Campaign mooted to kick out CJ" read one of the front-page stories in the Weekend Star edition of August 11-12, 2012. Here, reporter Walter Menya informed readers that a "campaign to intimidate the judiciary and eventually bring down Chief Justice Willy Mutunga was gathering pace".

Barely three days later, under the headline: "CJ to be put to task over 'controversial' court rulings" we read in the August 15 2012 edition of The Star that the Chief Justice would be put on the spot at the annual Law Society of Kenya (LSK) conference. According to the LSK chair Eric Mutua, "As much as we want to believe that everything is covered in the constitution, the lawyers think the country is not mature enough to have an "activist" judiciary.

Lawyer Kibe Mungai, speaking at the National Conservative Forum at a meeting on August 10, reportedly accused "the judiciary of being excessively activist." Three cases were cited to back this allegation of judicial activism: the High Court ruling that found the appointment of county commissioners to be unconstitutional, the ruling on the delimitation of constituency boundaries and the lifting of the ban on the Mombasa Republican Council.

It is interesting that Kibe is involved as legal counsel in two out of the three cases cited; how professionally ethical is it to use alternative platforms to make arguments that one is allowed to in court? But that, for me, is a minor point. If we are to subscribe to the view that the judiciary under the 2010 Constitution of Kenya is "subject only to this Constitution and the law and...not...subject to the control or direction of any person or authority", why are we now turning around and seemingly "instructing" the CJ to reign in judicial officers?

We cannot have it both ways: we cannot establish an independent judiciary and then begin barracking the Chief Justice whenever that judiciary, in exercise of its constitutional mandate, delivers a ruling that we disagree with or find unpalatable. Were the CJ to intervene at such behest, this would be an abuse of office and would constitute grounds for his removal. Of course, were there to be developed a cogent argument that there is a pattern of constitutional violation by the judiciary then this would be another case altogether.

But, one suspects, this is not really about constructing a tight and well thought out case to legitimately and appropriately hold to account both the CJ and the judiciary. Rather, as Walter Menya reports, it is supposed to be "a launch pad for politicians allied to Uhuru [Kenyatta] and [William] Ruto to make concerted calls for the CJ to resign or call on President Kibaki to set up a tribunal to investigate his conduct....[it is a] precursor to a nationwide political campaign to intimidate the judiciary."

This is sad. It is also based on very feeble and lame constitutional foundations. Worse, all this is anchored in legal quicksand. The authors of this scheme, before embarking on this perilously myopic and hopeless path, should read Article 168 of the Constitution which makes provisions around the removal from office of judges of superior courts. If they still think there are grounds to proceed, enrolment in a first year Constitutional Law class is a better option.

Notwithstanding how incurably afflicted by constitutional and legal jaundice this effort is, it will be certainly be made; for there is history. It cannot be too long ago for us to forget the bureaucratic resistance that the Committee of Experts that drafted the 2010 constitution encountered when it came to securing resources to properly and fully execute its mandate. Who was the Minister for Finance then?

It is not too long ago for us to forget the criminal insertion of a clause in the constitutional draft that would have allowed the violation of human rights under an unclearly defined interest called "national security". Who were in charge of national security institutions at that point?It is not too long ago for us to forget the outright and cheap lies that were propagated in the name of the NO campaign in an attempt to instil public fear and revulsion to the constitutional draft.

Were we not told that under the new constitution, abortions could now be procured even from mortuary attendants? Or that certain communities especially living in the Rift Valley would be dispossessed of their land? Or that it would be illegal for certain religions to evangelize? Or that we would now live under Sharia law? Who were behind the NO campaign?

Can we forget the colourfully titled "Watermelons" of the constitutional referendum process who were green by day and red by night? Those who were openly associated with the YES campaign during the day but surreptitiously funding and offering support at night to the NO campaign? Have we forgotten who they were?

These folks have now regrouped. They have been so used to buying "justice" or simply instructing it from a pliant and malleable judiciary. Now they are genuinely running scared of the new judiciary which is exhibiting an unprecedented robustness, confidence and independence. For them, they are beginning to see an end to their careers: "One of the fast-dawning realities is that the new constitution has established mechanisms that will, if fully brought to effect, sweep out a lot of state officers on grounds of unsuitability to hold office."

The signs for them are really bad: this is a judiciary that is willing to even let go of its own deputy Chief Justice on the grounds of gross misconduct following a reported incident involving a security guard. No longer is this the happy valley for the rich, powerful and famous; Wanjiku, the ordinary citizen, can demonstrably enjoy protection under the law.

This is the new Kenya they are particularly petrified about: the mwananchi (citizen) is slowly but surely now also becoming mwenyenchi (the sovereign). In a country so used to the "Big Man" it is no wonder that they were vehemently opposed to the 2010 Constitution; after all, under Article 1 (1) it is provided that "All Sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution." If obeisance to this is judicial activism, then so be it.

Mugambi Kiai is the Kenya Program Manager at the Open Society Initiative for Eastern Africa (OSIEA). The views expressed in this article are entirely his own and do not reflect the views of OSIEA.

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