Judiciary deserves the cold treatment from Uhuru

Many are familiar with the fable of the Arab and the Camel. It is the story of President Uhuru Kenyatta and the Judiciary.

Prior to the 2013 election, the Judiciary had the perfect chance to stop Uhuru Kenyatta and William Ruto from contesting in the presidential election as they were both ICC suspects. This is not to say they were guilty. It is just a reminder that issues of values, leadership and integrity were central to the 2010 Constitution and if the Judiciary would have stood firm, maybe, they would not have cleared the two to contest in the 2013 election. But, I digress!

Sadly, when the issue was brought before the Judiciary, they okayed Uhuru and Ruto to contest by throwing the ball to the toothless IEBC. That the Judiciary failed the new Constitution and okayed legal nonsense was the mother of all tragedies.

Fast forward to the election irregularities that were brought to the Mutunga court in 2013. If the Mutunga court would have stood with the Constitution and nullified the presidential election results based on the malpractices that were reported, then politicians and the IEBC would have taken elections seriously, as it should be.

And maybe, no one would have tried messing up with elections thereafter. I dare say that the Mutunga court, and its judgment on the 2013 presidential election, was the final nail in the coffin of the progressive 2010 Constitution.

Indeed, the failure of the 2010 Constitution is a problem of leadership. With that said, one can also authoritatively lay the blame on the Judiciary considering its role in rubberstamping the leadership in both the 2013 and 2017 elections.

After taking power in 2013 through the affirmation of the Judiciary, all institutions, the Judiciary included, became weak and subordinate to the Executive.

Now the Judiciary, having been outside the tent and felt the cold, resorted to becoming rogue. This rogue-ness has been described by scholars of constitutional law and political scientists as judicial activism and judiciary dictatorship. This is a situation in which the Judiciary overrides the mandate of the Executive and the Legislature in exercising their authority. Whilst practitioners of law view this as a good thing, it is bad for good politics and respectability of the law.

Currently, many states in the US are debating legislation that would see the legislature override the courts as not all court’s decision reflect the people's will. This whole debate is based on the fact that it is Parliament that represents the will of the people. The Judiciary, on the other hand, only protects the constitution as the people want it to be.

That is why the whole discussion around basic structure and unamendable clauses is neither here nor there. A constitution can only have a structure if the people have agreed to it. Also, a constitution can only have unamendable clauses if the people so want. Therefore, it is not the prerogative of the judiciary to lecture the executive and the legislature on democracy and constitutionality.

For this reason, Uhuru is right to give the courts the cold treatment. If he doesn’t, he would be surrendering his mandate and prerogative to the Judiciary.

Be that as it may, that Uhuru did not appoint all the 40 judges as proposed by the JSC is firmly within the law considering Kenya has a presidential system of government. There is nothing like ceremonial or nominal in a presidential system, especially in regards to the power of the president. The president, in a presidential system, is the almighty and all-powerful. He is the head of state and the head of government. Ultimately, the buck stops with the president.

And maybe that is why Kenya needs to rethink its Constitution. That is why the BBI is necessary. We need to have a candid discussion about power distribution in the Executive, Legislature and Judiciary. And finally, and even more importantly, we need to discuss what the courts can do and what they cannot do. And if indeed they have the final say.

Political Scientist. [email protected]