9 January 2016

Kenya MPs Quietly Pass Controversial Law Changes As Opposition Slumbers

The Kenya government appears to have stirred the hornet's nest with the quiet amendments to the law giving the president more direct powers over the selection of a Chief Justice.

Opposition and civil society groups are crying foul over the amendments to the Judicial Service Commission Act, which appear to have been sneaked into a Statute Laws Miscellaneous Amendments Bill that was passed just before the National Assembly broke for the Christmas recess.

With Chief Justice Willy Mutunga and two other Supreme Court judges set to retire in the coming months, the amendments will give President Uhuru Kenyatta crucial powers in shaping the composition of a Bench that may be called upon to adjudicate on any petition challenging the outcome of the 2017 presidential election.

The Law Society of Kenya has already moved to court challenging the new laws on the grounds that they are unconstitutional.

The amendments have also been condemned by the Kenya Law Reform Commission, which says it was not consulted, and that the amendments were introduced in a secretive manner that did not allow for public debate.

Some members of the Judicial Service Commission have also expressed concern about being in the dark as a law touching on their constitutional functions was drafted, tabled in Parliament, passed in a furtive manner and hurriedly assented to.

It is being argued that giving the president more power in the selection of the Chief Justice violates the constitutional provisions on separation of powers and amounts to Executive interference in the Judicial branch.

The law previously required that the president appoint the Chief Justice and Deputy Chief Justice presented to him by the Judicial Service Commission.

Despite the amended law not giving the president sole power to select and appoint the Chief Justice and Deputy, it provides that he picks his preferred choice from a list of three presented to him by the Commission.

Still, that is being cited as offending the letter and spirit of the 2010 Constitution that removed from the president powers to unilaterally appoint holders of key offices.

Critics are noting that the amended laws also gave the president more powers on the appointment of the Inspector-General of Police, usurping the powers of the Police Service Commission.

These are the actions being seized upon to accuse President Kenyatta's Jubilee Coalition of systematically moving to dismantle the safeguards against abuse of Executive power introduced with the Constitution.

Seen together with a series of moves against media freedom and civil society, alarm bells are ringing that the Jubilee regime is moving fast to silence dissenting voices, cripple independent institutions and assume dictatorial powers ahead of the 2017 General Election.

However, the political opposition that is crying foul is itself not innocent.

Opposition leader Raila Odinga has in the new year hit out hard at the Jubilee administration, accusing it of trying to replicate the dictatorial one-party Kanu regime.

However, he has remained silent on the fact that his own members of parliament from the Cord alliance have been complicit in the Jubilee designs.

The contentious Statute Laws Amendments giving the president more influence on the selection of the Chief Justice were passed without protest from the parliamentary opposition.

Cord MPs were part of the secretive process by which substantial laws were amended through clauses sneaked into an Omnibus Bill.

They either supported the amendments, or they were in deep slumber.

The debate therefore is not just about what could be President Kenyatta's alleged moves to recreate a dictatorship, but also about the ineffectiveness of Mr Odinga's opposition troops in parliament.

Mr Odinga has been harshly critical of the Jubilee administration, culminating in his fierce "State of the Nation" address last week that had State House seeing red and responding with an intemperate diatribe released by the presidential strategic communications unit.

Jubilee politicians led by National Assembly Majority Leader Aden Duale have also been mobilised to hit back hard any time Mr Odinga launches his attacks on the government.

The Opposition leader's renewed assaults have clearly rattled the Jubilee administration. But, while Mr Odinga may score big and attract public attention with stinging indictments against government corruption and mismanagement, he might be like a general without an army given how feeble the opposition is in parliament.

Although Cord is outnumbered by Jubilee in both the National Assembly and Senate, it has, in theory, the numbers to cause serious disruptions to government moves. Even if bound to be outvoted, it can make enough noise against unpopular Bills and Motions to rouse public anger and shame.

Instead, the Opposition is largely compliant or absent when the government introduces laws that may offend the Constitution or otherwise infringe on entrenched rights and liberties.

The far-reaching and Miscellaneous Amendments passed in the middle of December provide just the latest example of an opposition sleeping on the job.

By the time alarm bells started ringing and Kenyans were alerted to the contentious amendments, it was too late as they had already been passed into law.

Now the only way out is if the Law Society of Kenya managed to persuade the courts that the amendments violated the Constitution and thus stand null and void.

While Mr Odinga will no doubt simultaneously take the fight against the new laws to the political rostrum, he should have searching questions for the Cord MPs, including the Minority Leaders and Whips, who have not been up to par.

Kenya

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