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November 15, 2018

Judicial independence is an idea whose time has come

The Judiciary.
The Judiciary.

It must have been in early 1990 that I had my one meeting with Kenneth Matiba. Actually, to say I met him is a bit of an exaggeration. I came out of a lift on the ground floor of a building on my way out to lunch with a friend. And there to my great surprise was the iconic figure who was leading the struggle for a return to multiparty democracy, just walking into the lobby.

My friend knew him well, so he shook hands with both of us, and then the two of them stepped aside for a few quick words. I just stood there waiting.

Now what many young Kenyans may not know is just how dangerous it was then just a few months before Matiba was detained without trial by President Daniel Moi’s government to have even the slightest contact with such a vilified enemy of the monolithic political establishment of those days.

All those who were in any way involved in the fight to open up democratic space were termed “dissidents” by the single-party state. And if by merely shaking the hand of any such dissident in public, you were arbitrarily identified as a “sympathiser” by the security agents who trailed them day and night, you could easily be arrested by the “Special Branch”, as the elite plainclothes police unit was known in those days.

Kenya was then a classic authoritarian police state. There was no question of mercy for perceived enemies of the President and his men. If arrested, you would officially be pronounced to be “assisting the police with inquiries”. This was a euphemism for being subjected to indescribable torture in the Nyayo House underground chambers.

So, I look back with pride at the fact that despite knowing all this I shook hands with Mr Matiba. (My friend, who was a celebrated journalist, was in a different league, and did not care in the least who saw him talking with the famous “dissident.”)

A few weeks later I described this meeting to an MP I knew. He shook his head sadly. He could not understand what had come over Matiba, that a man so blessed by fortune rich, famous, popular should have undertaken such a fool’s errand as to stand up to Moi and his all-powerful despotic regime.

In this MP’s eyes, Matiba was not courageous, but tragically reckless. “There is no way that Moi will allow for a return to multiparty politics. He is determined to rule for life, just as Jomo Kenyatta did,” he concluded.

What most of us did not know then, was that Matiba was on the right side of history. And that Moi’s personal desire to be a life President was of no real consequence.

The return to multiparty politics was an idea whose time had come; there was nothing Moi could do to stop it. Matiba’s sacrifice would secure his place in Kenya’s history; and the dreaded Moi-era Special Branch would be dismantled.

I thought back on this chance meeting with Matiba, when I listened to the Supreme Court ruling on the presidential petition. For this time, I knew very well that I was watching history being made: The day of judicial independence was at hand.

Over the years, attempts to bring about greater independence for the Judiciary have failed because — irrespective of what our statute books said there was still a widespread conviction that the Kenyan Judiciary could not afford to “offend” the Executive. That there were invisible lines which must not be crossed.

But after Chief Justice David Maraga and three other courageous judges of the Supreme Court decided to take the unprecedented decision of ordering a fresh presidential election, the country officially turned the corner on judicial reform.

We can all hope now that going forward no matter how inconvenient a judicial ruling may potentially be to the national leadership of the day, that decision will be made without fear or favour.

As The New York Times noted, “The Kenyan Supreme Court has done a major service to democracy and the rule of law.”

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