The simmering conflict between Kenyan President Uhuru Kenyatta and the country’s justice system over constitutional supremacy has once again come to light. This time the battle was precipitated by the president’s attempt to usurp the powers of the Judicial Services Commission (JSC) to choose judges and court officers for the country’s courts.
For two years, claiming secret unfavorable findings against them by the intelligence services, Kenyatta refused to formally appoint 41 people selected by the JSC to occupy various positions, including the Court of Appeal. This is in defiance of the constitution, which leaves it no discretionary power in the matter, and numerous court decisions affirming it. This week he partially complied, naming 34 of them, but vehemently continuing to block six more (one had died in the meantime).
His position has been strongly condemned by civil society groups, parliamentarians and even the former chief justice, Willy Mutunga, who wrote a scathing letter accusing Kenyatta of being “garlanded in the pettiness of power” and of betraying his official oath. But this is not the first time that Kenyatta has come up against justice which, especially since the promulgation of the constitution 11 years ago, has asserted itself much more by demanding respect for the law from the political class.
For much of Kenya’s history, judicial independence has been a myth. In colonial times, judges sat at the pleasure of the Crown and lacked independence. As Mutunga observed in 2013, they were essentially “a civil service, beholden to the colonial administration and very rarely willing to stand up to it”.
Although upon independence in 1963, the constitution protected judges, deliberately isolating them from the executive branch, it failed to live up to the ingrained habits of judicial submission to executive tyranny that had been cultivated. and maintained under colonialism.
Over the next 47 years, with a few notable exceptions, the courts have not been content to shut up, but seemingly complicit as successive presidents and their cronies demolished all constitutional guarantees and restrictions. The judiciary has become little more than a department of the seriously underfunded and understaffed attorney general’s office.
In an important case in 1989, a judge declared the entire bill of rights inoperative and unenforceable, essentially depriving all Kenyans of their constitutional protections, as the chief justice had failed to establish procedural rules for its application. by the High Court.
Perhaps the lowest point for the judiciary came during the 2007 presidential election dispute, when lack of confidence in its independence saw the opposition take its case to the streets, resulting in death. more than 1,300 people, the displacement of hundreds of thousands and the virtual collapse of the country. In the aftermath of the violence, an independent judiciary was a top priority for reformers, who had fought for constitutional and judicial reform for more than 25 years.
In many ways, the 2010 constitution was a reset from that enacted at independence and overturned many of the ruinous amendments the political class had inflicted on Kenyans. The constitution of independence failed in large part because it was imposed by the British, the political class that received it did not believe in it, and after nearly a century of colonial repression there was little existing institutions that could defend it.
In contrast, the 2010 constitution was the product of decades of local struggle, broad national consultation, and had an army of civil society activists, lawyers, and ordinary Kenyans ready to defend it. More importantly, freed from the shackles of the executive, the judiciary is rapidly developing a backbone and asserting its role as an enforcer of constitutional rule.
However, it was not a simple evolutionary walk. Some of the judiciary’s interpretations of the constitution have appeared to be throwbacks to the old days of prostration before Kenyan leaders. The 2013 rulings which essentially said that the constitutional ban on integrity did not require those accused of crimes against humanity at the International Criminal Court to clear their names before running for the highest office in the country, and who subsequently confirmed the questionable election of President Kenyatta and his deputy, William Ruto, in a widely publicized judgment, has raised concerns among many Kenyans that the future will be a repeat of the past.
Courts have also controversially upheld colonial-era restrictions on sexual diversity, inexplicably equating same-sex sex with marriage and suggesting that by recognizing the right to marry someone of the opposite sex, the constitution somehow prohibited homosexual relations.
However, on the whole, the judiciary seems to have regained some of its foundations and gained some confidence from Kenyans by repeatedly repealing laws violating the constitution and, in the run-up to the 2017 elections, by supporting rules that would make cheating easier for citizens to detect.
Without a doubt, the climax came with the annulment of the presidential election that year, which was previously unthinkable. This resulted in terrible threats from Kenyatta to “revise” and two months later, following an attack on the Deputy Chief Justice, the Supreme Court was unable to meet a quorum to hear a case challenging the holding. of a new election before the problems which had led to the annulment were fixed.
Despite having “won” his second term, Kenyatta continued his war on the judiciary and the constitution, teaming up with his former rival, Raila Odinga, to launch the Building Bridges Initiative – a thinly disguised attempt to go back by amending the constitution to start recreating an almighty executive. The initiative resulted in a bill proposing several constitutional changes.
As in the 1960s, today the legislature has been effectively sterilized as a control over the executive and it is up to the judiciary to stop the bill. In May, in another landmark judgment, the High Court declared the company unconstitutional.
In a ruling that recalled the sad story of how the constitution of independence was mutilated through the amendment process and how Kenyans had to fight to defeat it, judges ruled that the falsification of the basic structure of the constitution could only be done by a constitutional assembly which involved all Kenyans in the drafting of a new one.
Once again, the decision angered and disappointed Kenyatta and his cronies and precipitated acts of retaliation. Two of the judges whose elevation he blocked to the Court of Appeal were part of the panel of five judges that rendered the decision.
In a gruesome speech in early June, the president said that the aim of human rights and autonomy was cooperation with the government and that the exercise of independence by the judiciary was a threat to the same. constitution which granted independence.
As the judiciary prepares to hear the government’s appeal against the ruling at the end of June, the question remains whether judges will again be intimidated into complying with the wishes of the executive or whether they will find the courage to do so. continue to defend the constitution and their own independence. Kenyans will keep a watchful eye, hoping for the latter.
The opinions expressed in this article are those of the author and do not necessarily reflect the editorial position of Al Jazeera.