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February 23, 2019

The Legislature Wants To Make President Uhuru A Dictator

President Uhuru Kenyatta. Photo Norbert Allan
President Uhuru Kenyatta. Photo Norbert Allan

For daring to prosecute President Uhuru and Deputy President Ruto and for quashing summons of Parliament to Judicial Service Commission and of Senate to governors, Judiciary is under attack by Kenya Parliament from ICC to the local courts.

Like their colleagues in the rest of Africa, President Uhuru and his deputy are fighting to be above the law and beyond prosecution while they are in office. For this to happen, African parliaments must make laws and courts interpret them to the best interests of the Executive. Already, through its domination by Uhuru's party and coalition, the president enjoys conquest of the National Assembly and therefore controls two thirds of the government power. This renders him a moderate dictator that will be absolute when the Judiciary will prostrate before Executive via Parliament.

Once the President controls the Judiciary, he will enjoy one hundred per cent of the government, an intention of all the struggles that look like anarchy. But what will the president do with his absolute powers when he acquires them? He will consolidate his power and ownership of national resources by abolishing democracy, checks, balances and separation of powers that are inherent in just government of men.

Through vetting, Judiciary has undergone some reforms but still has some way to go before people are happy with it. As it is, Judiciary looks like a Judiciary of the rich, the powerful and the famous whose cases are heard on priority basis while those of ordinary citizens are stood over for years.

Judges still mete out arbitrary injustice that seems determined by graft, personal whims and influences rather than by law and evidence. The same laws seem to be read differently for cases of different people! Tragically, people are fast losing faith in the Chief Justice who they believed would cleanse and give their society a dependable Judiciary.

Under Kanu one party dictatorship, presidents were God with powers of life and death over courts and people. They gained their absolute power by emasculating both Parliament and Judiciary, making them instruments of their personal rule, weapons of oppressing and enslaving, rather than vehicles of representation and justice.

Having suffered tyranny of the Judiciary under one-party presidential dictatorship, it is nightmarish to think of another emasculated Judiciary that will take instructions to clear the forest of law where people hide rather than give them refuge.

Senators and MPs who are today attacking courts for protecting Judicial Service Commission and governors are enemies of democracy, not because Parliament cannot summon JSC to appear before it, but because attacking courts for their interpretation of the law can only lead to anarchy and disintegration of society.

But as we defend the independence and freedom of the Judiciary, we must also defend legislative sovereignty of Parliament which does not mean dictatorship of Bunge over Judiciary and society, but its exclusive right to make law.

But as Bunge has the exclusive right to make laws, which can be added to through court decisions, courts have the exclusive right to interpret the law for which they can never be punished by cutting down their budget, firing, detaining or assassinating them as happened during years of one-party dictatorship.

There can be no democracy without a responsive parliament, a law-abiding Executive and an independent Judiciary. Equally, getting rid of Judiciary as some MPs have threatened, will inevitably replace democracy with dictatorship. A functioning democracy allows media to expose the rot and corruption in government.

It allows courts to tame legislature by rejecting laws that are unconstitutional and oppressive. It allows the President to tame the Judiciary by setting up just tribunals to investigate their conduct and corruption. It allows Judiciary to check on Executive exercise of power through negation when excessive.

Through strict observance of separation of powers and proper use of checks and balances between them, no Executive, Judicial or Legislative power can be exercised against the people.

When separation of powers, checks and balances are not observed, it becomes the turn of dictatorship to take over an ill balanced government and tyrannize society. In performance of their separate and independent functions, Parliament, Executive and Judiciary are equal.

In guarding against dictatorship however, the Executive must be watched most because it is most dangerous. In Kenya, we have seen dictatorship of the President. But we have yet to see dictatorship of the Speaker or Chief Justice. After all, dictatorship is misuse of forces of violence and coercion that form the Executive or serikali that is led by President, never Speaker or Chief Justice.

The seeming struggle between Parliament and the Judiciary is not a legitimate search for balance of power between two arms of government that is already controlled by a combination of the Executive and National Assembly through Jubilee Coalition's "tyranny of numbers", but a supreme effort by President to marshal domination of Judiciaryand Legislature, inevitably making himself absolute dictator.

While the Legislature is fighting Judiciary for the ulterior motive of rivaling the power of the Executive and questioning illegal exercise of its powers, which fall within their mandate, courts must always interpret man-made laws according to the laws of God. When ordinary people don't understand justice, it is injustice that will ultimately destroy Judiciary itself.

Apart from refusing to obey summons of the Senate and misappropriating public funds, the legislature is also fighting governors for rivaling the power image of President. Yet a legislature that was never vetted under chapter six of the constitution on integrity has no moral authority to pontificate on integrity to somebody else.

The country must understand. The real reason for the current political squabbles is the President seeking dictatorship by subjugating the Judiciary through a compliant Parliament. Yet without an independent Judiciary, Parliament and Kenya will be no more.

Koigi wamwere is the leader of CCM Party


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