It has become an article of faith in Kenya that justice is only achieved when judges rule in one’s favour. It is a moving target.
In 2017, the Supreme Court nullified President Uhuru Kenyatta’s election on petition by his competitor Raila Odinga. He had filed a petition in 2013, this was therefore Raila Odinga II.
The Odinga team and supporters hailed the court as independent, transparent and accountable. On the other hand, President Kenyatta had no kind words for the court. He used the word wakora and promised to “revisit the issue.”
The relationship between the Executive and the Judiciary was tumultuous during the tenure of President Kenyatta and Chief Justice David Maraga.
Fast forward 2022. Odinga and seven others dissatisfied with the outcome of the 2022 presidential election, once again petitioned the Supreme Court. The court unanimously dismissed the petition for lacking in merit and upheld the election results.
This time, the shoe was on the other foot. Odinga made an about-turn and accused the court of inconsistency, corruption and being compromised by the Executive. He took issue with the language and tone of the judgment without getting into its merits.
After the 2010 Constitution, the Judiciary has made tremendous strides. It has asserted its independence and interpreted and applied the Constitution progressively.
It has fiercely applied the Bill of Rights, invalidated Executive orders and directives, stopped illegal mega infrastructural projects and struck down unconstitutional legislation. The court’s footprint across the country has increased and enabled access to justice. It is acclaimed regionally and internationally with some of its decisions being relied upon by foreign courts.
But the politics of presidential election petitions puts us on blinkers when relating to the Judiciary generally every after five-year electoral cycle in a divided country, ignoring the gains.
Since independence, the biggest threat to judicial independence has always been the Executive. Post-2017, the Judiciary faced assault from the Executive as a result of the Supreme Court decision. It now appears that the Executive does not have a monopoly over unfounded criticism, harassment, intimidation and gas lighting the Judiciary.
After Raila Odinga III, there have been a campaign against the Judiciary by the petitioners in the case, public commentators, civil society, politicians and the media that the Judiciary is “in bed “with the Executive”.
When the High Court declared positions of Chief Administrative Secretaries unconstitutional, one media house quipped that the Judiciary is “redeeming itself” from Raila Odinga III.
In a free society, criticism of public institutions and officers is a tool of accountability and furthers freedom of expression. The Judiciary has its own historical weaknesses including corruption but when addressing these issues, it behooves us not scandalise the institution, dragging it into our divisive national politics but responsibly, truthfully and objectively hold it to account.
The writer is an advocate of the High Court of Kenya
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