May 13, 2021, will be etched in the annals of Kenya’s history as another pivotal moment when once again the Judiciary boldly upheld and affirmed the sovereignty of the people, and the supremacy of the Constitution while reclaiming its independence.
The last time the spirit of constitutionalism coursed so strongly and emphatically through a decision of the Kenyan Judiciary was on September 1, 2017, when then Chief Justice David Maraga led the Supreme Court in emphatically asserting the authority, independence and rightful role of the Judiciary in the constitutional order. The majority decision of the Supreme Court annulled the August 08, 2017 election of Uhuru Kenyatta as president of the Republic of Kenya in the petition that was brought by former Prime Minister Raila Odinga and his running mate Kalonzo Musyoka. The palpable sense of pride and affirmation of the entire Judiciary in the Raila 2017 decision was captured in anecdotes of judicial officers symbolically retaking their oaths of office days after the monumental judgment. The Judiciary, it was said had finally come of age: judicial independence had been attained.
Sadly, that independence would be short-lived - lasting only sixty days. Following the Raila 2017 decision, an angry President Uhuru Kenyatta would wield his power and position to make good on his threats to retaliate against the judicial organ of State, emasculating the institution and leaving it whimpering.
The hope in the Judiciary that had been ignited by the Maraga-Court was once again rekindled on May 13, 2021, by the five-judge bench of the High Court consisting of Justices Joel Ngugi, George Vincent Odunga, Jairus Ngaah, Teresiah Matheka, and Chacha Mwita. The five delivered a brave, straight-shooting, bold and stellar decision on several consolidated constitutional petitions challenging the Building Bridges Initiative (BBI) process towards a constitutional referendum.
Ironically, BBI was birthed out of the effects of the September 1, 2017 decision and was the brainchild of President Kenyatta and Raila Odinga, who had been symbolically sworn in as “the People’s President” at a mock ceremony held after the dispute over the two presidential elections in 2017.
It is poetic justice, and by divine appointment, that this time round, both President Kenyatta and Raila Odinga are on the receiving end of the judicial rod. This boldness in the affirmation of the supremacy of the Constitution and the rule of law is what Raila Odinga fought for in his 2017 presidential election petition. He, therefore, has no choice but to accept the High Court decision with grace and humility and reconsider, where like the biblical Samson, he allowed Delilah to cut off the source of his strength and vision. There is yet hope because, like Samson, Raila Odinga has a chance to reclaim his strength and bring down the Philistine pillars, edifices, and entire temple.
For the Odinga column, especially eminent legal scholars who rightly lauded the September 1, 2017 decision, it is easy to see and understand their conflict and struggle in faulting the High Court bench and the BBI judgment. They will struggle to fall on their swords, as they must.
The fact that the May 13, 2021, High Court decision can be challenged in the Court of Appeal and possibly further at the Supreme Court is a perfect opportunity for the Judiciary to consolidate this significant gain and reassert its independence beyond assail. In 2017, the Maraga bench thought that they could domesticate a wild animal and assuage a serially rogue Executive. It did not work and the administration of justice has since been suffering greatly the ramifications of that mistake.
The Executive targeted the four Supreme Court judges who authored the majority judgment in the 2017 Raila decision in an attempt to induce fear in the rest of the judicial ranks. Deputy Chief Justice Philomena Mwilu is a living testament of the lengths to which the promise “to revisit” the Judiciary was and could be taken. Sight must never be lost of the fact that the attack on DCJ Mwilu has always been a veiled threat and attack on the entire institution of the Judiciary.
Ms Aullo is a constitutional lawyer and Advocate of the High Court of Kenya.
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