As a member of the Constitution of Kenya Review Commission (CKRC) and Bomas who fought hard for significant responsibilities for the Judiciary and the independence of its members, I have noted with dismay the cavalier attitude of Uhuru Kenyatta towards the law and the Judiciary ever since he became President—and have alerted the public about it.
The ultimate guardians of the Constitution are our judges. Tempering with the process for their appointment, independence and dismissal is to undermine the spirit and supremacy of the Constitution—and to take us back to the dark days of the Kanu regime.
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Because most Kenyans had paid such a heavy price for the capriciousness and greed of our rulers (of which I too had been a victim), I wanted to ensure the new Constitution would provide for the rule of law, guarding our independence, democracy and human rights.
The importance of the rule of law, rooted in the Constitution, had already been emphasised by Kenyans who had struggled for our liberty and justice—a struggle which laid the ground for the mandate and work of the CKRC.
The 2010 Constitution is a carefully crafted basis for our national values and institutions, the latter grounded on the separation of powers, but under the ultimate authority of the Judiciary to determine and maintain its legality.
Journey to the Rule of Law
I was alerted to how rotten the judicial system had become when many people presented their views to the CKRC on corruption within the Judiciary.
The corruption included judicial subservience to senior political class, often directed through the Attorney-General—or the state’s retribution to the politically defiant. In purely private litigation, the judgment was delivered to the highest bidder, auctioned in the sanctity of the judge’s chambers.
My inquisitiveness about the veracity—and scale—of financial and political corruption led to threats from the then chief justice—and an internal order that no judge was to meet with the CKRC (though a handful did meet us in conditions of total secrecy). It seemed clear to me that major reform of the Judiciary was needed.
The new regime of the Judiciary
The commission report was most scathing of the state of the Judiciary. It made a number of thoughtful proposals—about the nature of the judicial function, the importance of judicial independence, qualifications and the mode of appointment and dismissal of judges.
The CKRC adopted all these proposals, after consultation with the Law Society and the few judges who met us surreptiously—and they are now the part of the Constitution. Major responsibility could be placed on the Judiciary only because of this new scheme—which included the vetting of all existing judges, and tough standards for the future.
To a significant extent, the present Judiciary has discharged its heavy duties with a clear sense of their obligations, and the ethos and values of the Constitution. That is why the President does not seem to like it—except when it makes a ruling in its favour.
Uhuru’s threats to the integrity of the Judiciary
In previous articles, I have outlined how Uhuru has tried to control the Judiciary, thus violating the fundamentals of the Constitution.
He sat, illegally, on the appointment of judges recommended by the JSC (a purely formal task) for months, indicating that he did not want them.
He has interfered with the appointment of members of the JSC. And now most recently—and known universally—his threat to sack the members of the Supreme Court who held the 2017 elections void for breach of the Constitution. I do not know what to make of allegations in well-known media that his team had tried to bribe Supreme Court judges to uphold the elections.
Uhuru: Stay off the Judiciary
As I have mentioned, the Judiciary plays a fundamental role in the maintenance of the integrity of the Constitution, which includes democracy, human rights, participation, devolution and power sharing.
Without a learned, honest, and brave Judiciary, we will easily slip back to the dark days. Kenyans rightly feel greatly relieved, and grateful, at the decision of the majority of the Supreme Court on the elections.
Such is the sorry state of the Judiciary in so many parts of Africa, that Kenya’s Supreme Court has received such grateful acknowledgment from the final courts of other countries (even South Africa, whose jurisprudence we have followed with great admiration and profit for our own learning and practice).
Kenyans and the international community have recognised the significance of the brave act of four judges for the future of our and perhaps their countries.