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The Executive is hell-bent on killing judicial independence

By Makau Mutua | Published Sun, July 16th 2017 at 10:28, Updated July 16th 2017 at 10:41 GMT +3
Chief Justice David Maraga. Photo: Edward Kiplimo, Standard

Today I want to take Jubilee to the cleaners for its blatant – and unabashed – attacks on the Judiciary. It’s high noon in Kenya, and the political temperatures are abnormal. There’s foreboding in Jubilee. Panic has set in. The party in power feels beleaguered. Perhaps the writing is on the wall.

That may explain why Jubilee’s duo of Uhuru Kenyatta and William Ruto have unleashed unprovoked attacks on Chief Justice David Maraga and the courts. In one recent vitriolic outburst, both Kenyatta and Ruto accused Maraga and judges of colluding to frustrate the IEBC to delay the August elections. They’ve obviously forgotten – if they ever knew it – that the Judiciary is an independent arm of the state.

Several cases have especially rattled Jubilee. In all of them, the state was aligned with the IEBC. And in all of them, the state and IEBC lost. The law is an ass – it cuts both ways no matter your station if it’s applied impartially. Even if you are the state – and especially so – it’s foolish to expect that judges will always rule in your favor irrespective of the merits of your case.

This is a cardinal assumption in a democracy. I read hypocrisy in Jubilee’s attacks on judges particularly because Kenyatta and Ruto hailed the Supreme Court when it ruled for them in the infamous 2013 presidential petition. You can’t love the courts only when you win.

The first case that flummoxed Jubilee was the High Court’s ruling striking down the IEBC’s decision to bar Machakos gubernatorial candidate Wavinya Ndeti. Ms Ndeti is poised to boot out Ukambani’s Jubilee point man and Machakos Governor Alfred Mutua. Jubilee wants to protect Governor Mutua at all costs. In the second case, the High Court ruled – and the Court of Appeal affirmed – that ballot count at the constituency level is final and irrefutable.

The third case, the High Court struck down an IEBC decision granting Dubai-based Al Ghurair the tender to print presidential ballots. The court ruled the tender process opaque. Since the case was brought by NASA, Jubilee charges that the courts are in cahoots with the Opposition.

This is not the first time Jubilee honchos have attacked the Judiciary. In 2013, with the presidential petition pending before the Supreme Court, Kenyatta was caught on camera dismissively calling the judges “some six people” who will decide “something or other.” The impression was that either he had the case in the bag, or the judges were simply lackeys.

Majority Leader Aden Duale and National Assembly Speaker Justin Muturi in the last five years carried out a scorched-earth war against former Chief Justice Willy Mutunga and independent judges. They’ve called court rulings “stupid” and vowed to defy them. Others like Devolution Cabinet Secretary Mwangi Kiunjuri are known for their anti-Judiciary diatribes. Simply put, the executive is hell-bent on killing judicial independence.

Chilling statement

To his credit, Maraga has come out strongly to defend what he calls the “decisional independence” of judges. He’s appropriately decried attacks on the Judiciary. He’s done so under a cloud that hangs over him. He repudiated Kenyatta’s statement at a rally in Kisii to effect that he “gave” him the job of Chief Justice. Kenyatta was pleading for the votes of the Kisii at the rally. I could recount the times without number during which Jubilee potentates have lobbed missiles at judges they deemed independent. These people haven’t read the 2010 Constitution, and are a clear and present danger to the republic if they’ve done so. Meanwhile, Attorney General Githu Muigai stands mute like a statue.

One chilling statement was made by Ruto. In a vicious attack, Ruto implied Maraga knew, or instructed, judges to strike down the Al Ghurair tender of presidential ballots. Ruto ominously mused, “[w]hen the Chief Justice tells the IEBC not to print papers because there are court cases what does he know that we do not know, does he know how the cases will be decided.” This is straight out of the playbook of dictators. It shows a deeply ingrained streak of disdain for democracy that is outlandish. Last time I checked neither Kenyatta, nor Ruto, are lawyers. I must wonder legal reasoning they are using to declare the verdicts of the courts “political.”

Finally, Jubilee should spare us the crocodile tears about the independence of the IEBC. Jubilee mandarins speak as though they are the guarantors and guardians of the IEBC and of a free and fair election. Let me disabuse them of this illusion. As partisans and contestants, they have no more claim over the IEBC than the Opposition, or the lone citizen. Nor can they be judges in their own cause. They – and the IEBC – have lost in the courts because of incompetently bad legal advice.

Makau Mutua is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC. @makaumutua


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