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Chief Justice (CJ) of Kenya David Maraga (Photo: Elvis Ogina)
Kenya is going through unusual constitutional and legal challenges that amount to crisis. However, it is simply part of periodic gyrations that make the constitution and law political tools.

Those who can manoeuvre the two determine the direction that the country follows. When the constitution is fundamentally flawed, the country experiences repeated constitutional crises. Kenya goes through those constitutional crises when critical organs of State are at loggerheads with each other, yet they are expected to work together.

The weak philosophical foundation is to blame, partly because it was done in bad faith. The participants at Bomas, said CKRC Chairman Yash Pal Ghai, had problems getting the big picture. CKRC Chief Executive PLO Lumumba agreed with Ghai’s observation about inability to think big.

Such ill-prepared delegates could have been influenced to vilify the Executive and the Judiciary as conjoined twins in bad governance. The result was to create a different arm of State, called commissions, which simply triplicated functions of State organs and provided jobs for favourites. It also entrenched structural conflicts between the Executive and the Judiciary in terms of expectations.

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It gave the president overall charge of the country’s wellbeing and safety, while also turning him into a virtual rubber stamp of decisions made by commissions. It also demanded overhaul of the Judiciary, particularly the Chief Justice, but left the main structure intact. The public, tired of the continuous search for power grab in the name of constitutional reforms, eventually gave in just to move on in the hope that things would return to normal. It was mistaken.

Although Chief Justice Evan Gicheru retired and Mwai Kibaki’s divided presidency lapsed, there hardly was peace. The country, in 2013, elected Uhuru Kenyatta and William Ruto, a constitutional team that tested the new Supreme Court under Chief Justice Willy Mutunga.

Aware of the likely repercussions of decisions, whether bad or good, Mutunga strove to have the Supreme Court speak with one voice and to give cogent reasons for the positions that it took. He wanted the court’s image and that of judges to be beyond public reproach.

He thus disappointed many who expected to use his previous legal rebellious nature to push political agenda that ran afoul of his sense of national rectitude. Mutunga knew the inevitability of politics in virtually everything and knew when to leave. He decided to leave the high office before his time; self-denial to power that increased his mystic in public.

As philosophical as he could be, however, Mutunga avoided handling thorny challenges in the constitutional architecture whose design is sketchy and provides weak pillars and beams that can hardly support the roof in the Kenyan house. The rooms, whether executive, legislative or judicial, leak in part because both the architects/designers and the masons/constructors missed something, which explains the constant quarrels.

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Among the conceptual weaknesses is the question of whether the president is a rubber stamp for decisions made elsewhere even if they are detrimental to national interests. The assumption that the president must do what subordinate entities demand of him, when he believes that it would be wrong to do so, runs against common interests, common logic, and common sense.

Selected clauses

That assumption also runs contrary to the other constitutional expectation that the president’s overall responsibility to look after the short and long term interests of the entire country does not allow him to do something that is fundamentally anti-constitution. Subsequently, when things go wrong, the president cannot claim that other State organs and individuals or selected clauses in the constitution forced him to do things that harm the country.

In contrast, Mutunga’s successor, David Maraga, has had a public image problem. While his repeated public spats with the Executive do not present an either or situation, they call for a relook at the structural weaknesses in the constitutional architecture. With barely six months to go before retirement, Maraga has opportunity to influence who succeeds him into that office and maybe downplay the impression that he presides over a divided judiciary. He can initiate the process of finding his own replacement, fill other virtual vacancies, and re-orient Kenya’s constitutional thinking. Can he seize the moment? 

Prof Munene teaches history and international relations at USIU

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