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Commentary
A missing plank in the discourse on the Building Bridges Initiative (BBI) is the future role of the Kenyan Judiciary.

As the Judiciary prepares for retirement of Justice J B Ojwang early in the New Year, a missing plank in the discourse on the Building Bridges Initiative (BBI) is the future role of the Kenyan Judiciary, particularly the Supreme Court, which has a central role in the management of electoral disputes. The Judicial Service Commission submitted a detailed memorandum to the BBI task force, whose main thrust was a case for the financial and institutional independence of the Judiciary.

The political violence of 2007 led to a loss of public confidence in the Electoral Commission, and eventually pushed the country towards greater judicialisation of politics by establishing a Supreme Court with the exclusive mandate to resolve presidential electoral disputes.

While, under the previous Constitution, the Judiciary already managed presidential electoral disputes, this mandate was exercised in the High Court, a lower tier of the Judiciary, with the possibility of any appeal exposing such disputes to incalculable political fortunes.

When the newly-established Supreme Court first exercised this special mandate, in 2013, the outcome was disastrous and showed its lack of understanding of the politics of its new powers. The pummelling the court faced, and changes in its composition over time, seem to have motivated the court to rise to the occasion in 2017, annulling the presidential election and sending the country back to a fresh election.

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Rather than universal adoration for the courage to annul the presidential election, the Supreme Court has faced political hostility, including budget cuts and frequent deadlock where the cooperation of the executive is needed to facilitate affairs of the Judiciary. The latest impasse has forced the closure of Court of Appeal stations outside Nairobi due to a shortage of judges.

If the Supreme Court angered President Uhuru Kenyatta when it annulled the results of the 2017 presidential election, it surely pleased his opponent, Raila Odinga, the biggest beneficiary of the annulment, whose longstanding claims that the country’s elections are rigged were finally vindicated.

While Kenyatta and Odinga have reconciled through the handshake, official hostility towards the Judiciary has persisted. The unprecedented shakedown of the Judiciary, when Deputy Chief Justice Philomena Mwilu was charged with corruption, the kind of accusations now labelled against the opponents of the political establishment, happened after the handshake, as well as the petty disrespect for Chief Justice David Maraga. Why is the establishment still so angry with the Judiciary when it has made peace with its political rivals? If the Judiciary is being vilified for standing up for him, why is Odinga unable to leverage his new position to protect the Judiciary?

Informed by the 2007 electoral conflict, the underlying consideration behind the establishment of the Supreme Court was a decision to transfer the country’s inability to manage peaceful regime change from the realm of politics where there had only been frustration, to the realm of the courts in the hope that there would be better luck. Ideologically, the Supreme Court is a political, rather than a judicial organ, unlike courts below it. This ideological position is reflected in the attempted ethnic balancing of the court’s membership.

While the courts had previously upheld contested presidential election results, in 1997 and 1997, they did so without the burden of the ideological expectations behind the Supreme Court, and their decisions hardly received public notice.

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The huge public disappointment, when the Supreme Court read such a timid decision in 2013, was embedded in the post-conflict ideology that the Judiciary must steer the country away from future political violence.

The unending anger that the political establishment has shown towards the Judiciary is not directed at what happened in 2017. Rather, the anger is over the fact that with a strong and independent Judiciary, politicians, unable to calculate political risk, will be unable to plan their future.

A political party that expects to remain in power for a long time, desires a weak Judiciary while one that expects to lose power soon would want a strong Judiciary.

If the BBI is a project to maintain a façade of elections into the future while shielding the leadership from the risk of losing power through competitive elections, it has no desire for a strong Judiciary. Between managing the internal affairs in Jubilee and placating the former leading lights in NASA, there are enough balls in the air without having to worry about what an uncontrolled Judiciary could do.

Since the 2017 election, the Jubilee government has been constructing an alternative ideology about the Supreme Court, seeking to alter the political deal that placed the court in realm of politics, and casting it as a subordinate organ.

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While Odinga owes the Supreme Court a debt of gratitude, his interests have since shifted and he is now not in a position to defend the court. Like Kenyatta, his future interests require a weak Judiciary.

- The writer is the executive director at KHRC. [email protected]


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