How Constitution tamed powerful president and our greedy politicians

Court of appeal judges  Fatuma Sichale, Patrick Kiage, Roselyn Nambuye, Daniel Musinga, Hannah Okwengu, Kairu Gatembe and Francis Tuiyot. July 2, 2021. [Collins Kweyu, Standard]

President Mwai Kibaki promulgated Kenya’s new Constitution 11 years ago, in the presence of the political notables and grandees of the day. Among them was Prime Minister Raila Odinga and Attorney General Amos Wako.

The president brandished the Constitution before a mammoth crowd in Uhuru Park, promising the world that the country had turned a new leaf, never to slide back into misrule.  

It was a new dawn, entrenched in a people-driven mother law. For the country had suffered under political power elite abuse of the law for 47 years. Kenya had witnessed no less than 27 ripples of constitutional amendments, most of them of whimsical character.

Besides, in the integuments of each amendment were other changes, each addressing some sinister political agenda. It was behind this background of a battered constitution that Kenyans strived for two-and-a-half decades to give themselves a new Constitution. 

The so far frustrated efforts to push through the Building Bridges Initiative (BBI) constitutional Bill speak of a political elite class that has lagged behind the new constitutional order. The indictment of the BBI Bill, by both the High Court and Court of Appeal, points to a political class that has failed to grasp the full import of laws whose making they contributed to. The laws have neutered the political elite casting them, each time they attempt to tinker with them, as a class sleeping through a revolution. 

For failing to appreciate both the letter and spirit of the laws that they made, they have suffered before the courts each time they have tried to act within the political formations of the old order. In the process, however, the stability of the Constitution has also been tested and its soundness affirmed. 

President Kibaki was the first to test the foundations of the new Constitution in 2011. Soon after the promulgation, he attempted to appoint a new Chief Justice, the Attorney General, and the Director of Public Prosecutions, without following the new constitutional path.

Kibaki was forced to withdraw the appointment of Alashir Vishram as Chief Justice and Githu Muigai as Attorney General, after National Assembly Speaker, Kenneth Marende, ruled that Parliament would not vote on the appointments, as they were unconstitutional.

The process went back to the drawing boards, amidst protests by Deputy Prime Minister Uhuru Kenyatta, and PNU MPs. President Kibaki was forced to follow the constitutional path. Eventually, Dr. Willy Mutunga was competitively appointed the first CJ under the new Constitution, in June 2011 and Githu the AG. 

President Kibaki was the first to test the foundations of the new Constitution in 2011. [File, Standard]

It was the first, but not the last test for the Constitution. It has been tested many times since, and proved resilient each time. The most tested part remains Chapter Six, whose stringent leadership demands the 11th Parliament diluted, by loosening the integrity and value-based leadership imperatives. The guiding principles for leadership and integrity call for total honesty, competence and integrity in leadership. The Constitution is emphatic on the need to avoid conflict between personal interest and public duty. Yet, this has not always been the case.

War on graft affected

The attempt by both the Independent Electoral and Boundaries Commission (IEBC) and the Ethics and Anti-Corruption Commission (EACC) to apply Chapter Six to the 2013 and 2017 elections were thwarted by Parliament. Integrity and accountability in duty remain deficient in public service. The war on corruption remains the biggest challenge. The Arror and Kimwarer dam scandal is significant only as political capital and fodder, as is the National youth Service scam, the Kemsa scandal and a medley of other financial improprieties in the National Government and County Governments alike. 

People of visibly questionable integrity have ascended to high office, in the Cabinet and in counties. Parliamentary committees vets presidential appointees with closed eyes. Mercifully, the law has demonstrated that it can bite. Some of these persons have been forced to resign from the Cabinet, while others have been hounded out of office through impeachment. 

County assemblies have, however, sometimes used impeachment as a selfish whip, in search of undue personal financial gain. Many governors and their cabinets walk on eggshells, afraid to rub MCAs the wrong way, lest they should be impeached. But, once again, the law has proved that it can stand. Several baseless attempts to impeach governors have flopped on the floor of the Senate. And when the Senate unfairly impeached Governor Martin Wambora of Embu, the Judiciary twice overturned the impeachment.

An assertive and courageous Judiciary is easily the biggest gain in the Constitution of Kenya 2010. In September 2017, the Supreme Court shocked the world by becoming the first court in Africa, and only the fourth in the world, to nullify a presidential election, on account of the processes having been thoroughly flawed by illegalities and irregularities. The David Maraga led court took verbal blows, sundry threats and prime intimidations from a piquant Executive. They were lampooned as wakora (common gangsters). President Uhuru promised to “revisit.”

Former Chief Justice David Maraga. [File, Standard]

The revisit has since been executed through reduced budgetary allocations to the Judiciary, failure to appoint judges to the High Court and Court of Appeal, as well as regular disparaging remarks against the institution, usually from quite high in the Executive. Following the defeat of the BBI Bill in the High Court and Court of Appeal, the judges have been parodied as “activists in the Judiciary,” by persons with little regard for the letter and spirit of the law. 

The next test for the Judiciary as the last firewall in the rule of law is on the cards, with the BBI contest now headed for the apex court. The BBI Secretariat of former Dagoretti South MP, Denis Waweru and Minority Whip in the National Assembly, Junet Mohamed, while announcing the intent to go to the Supreme Court, also had appalling things to say about the preceding two courts. They all but accused the judges of political compromise. 

The political class has approbated and reprobated in equal measure, now praising the Judiciary then blasting it, depending on the political interests in matters before the courts. When the Supreme Court dismissed the 2017 presidential election, the opposition NASA team hailed the courage, independence and justice in the Judiciary. Yet, when the two courts have thrown out the BBI Bill, the same leaders and their agents have vilified and accused it of “playing politics wi™th the law.”

Resolute judiciary system

The political class has expected that the courts should see the matters before them through the same political lenses as the ruling elite. President Uhuru has accused the Judiciary of “failing to see the big picture and what is good for the country.”  The expectation has been that they should see political exigencies and not the law. 

Quite contrary to what seem to have been the expectations of the Executive, the third CJ under the new Constitution, Lady Justice Martha Koome, is proving to be a firm defender of both the Constitution and an independent Judiciary. She has on more than three occasions, in her tenure that is slightly less than four months, reminded all and sundry that the Judiciary will remain independent under her watch. It is a reassuring assertion, seeing that Chief Justice Koome is set to be at the helm of the institution for nine years. 

Chief Justice Koome. [Edward Kiplimo, Standard]

In January last year, President Uhuru made the boldest attempt yet, to rein in the Judiciary. Executive Order No. 1 of 14 January 2020 was a rare attempt to go against the constitutional separation of powers with checks and balances. Uhuru attempted to bring the Judiciary under control of the Executive. Also attempted to be brought under the Executive by the same order were the Public Service Commission, the Kenya National Commission of Human Rights, and the Independent Boundaries and Electoral Commission. Justice James Aaron Makau of the High Court declared the order “unconstitutional, null and void and contrary to the Constitution of Kenya, 2010.” 

Parliament, however, has been another ballgame altogether. Functioning under the most liberal parliamentary dispensation in the history of the country, the 12th Parliament has been an inept hostage in the custody of the Executive. For the first time in the country’s legislative life, Parliament has been whipped from the State House, where members of the ruling Jubilee Party have been summoned several times, to receive orders on legislative agenda. 

Possibly being themselves delinquent at individual and personal levels, MPs have found it difficult to live up to their oath of office, “to serve conscientiously.” It has, therefore, been largely a docile House, both in the Senate and National Assembly, watching and waiting, looking above for instructions, even in the composition of Parliamentary leadership. 

The Minority in the two houses have not been an exception to this rule. After the removal of Garissa Town MP, Aden Duale, as the Leader of the Majority in the National Assembly, in June last year, the Minority Whip scoffed at him on the floor of Parliament, “As for Duale, when you see us following Baba like cows, it is because we fear (the) consequences like what you are facing today.”

Other constitutional tests remain. The functioning of the Presidency is topmost on Kenya’s collective mind. The President and the deputy are constitutionally expected to gel, as they are elected on the same ticket. The constitution envisages the possibility that they could be from different parties, but on the same ticket, under a pre-election coalition. 

Testing times for constitution

That was how Uhuru and Ruto were elected in 2013, with Uhuru coming from The National Alliance (TNA) and Ruto from the United Republican Party (URP). They seemed to work quite well together. Yet, when the two parties have fused to form one Jubilee Party, relations between them have got completely out of hand. The constitution is once again on trial, as the President and his loyal supporters – including from the Opposition – urge the DP to resign. The DP is, however, constitutionally protected from such pressures. It will be interesting to see how this ends. 

President Uhuru Kenyatta and DP Wiliam Ruto on the campaign trail. [File, Standard]

The extra-legal quasi-power sharing arrangement in the Executive, between the President and the ODM Leader, is yet another constitutional test. The constitution states that the government cannot be formed by any means other than those in the constitution. The March 9, 2018 handshake between President Uhuru and the ODM leader, however,  created a cryptic situation in which, for all practical purposes, Raila seems to function in some unstated power-sharing arrangement with Uhuru.  

Apart from joint ownership of the BBI, Raila appears and resonates at all formal occasions of presidential significance outside the Cabinet next to Uhuru, almost like a co-principal. The constitutional significance of this is a matter of future conversations in law and governance. 

Most critical in the developments since 2010 has been the fall of the imperial Executive and the separation of powers between the Executive, Judiciary and Legislature, despite the docile, sleepy and laid-back character of the 12th Parliament. While the Executive and the Legislature have failed to recognize the changed times and realities, the country has moved on.

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021