After the Supreme Court judgment, President Uhuru Kenyatta declared that after the Presidential election rerun he will fix the court. I seriously doubt he had carefully thought about his utterances or consulted his legal handlers. The truth is most politicians only consult their legal advisers after making pronouncements that are either illegal or untenable.
For Uhuru to achieve what he desires, he would have to deconstruct the entire Constitution, remove Article 163, which establishes the Supreme Court and Article 159, which is categorical that judicial power is delegated to the Judiciary by the people of Kenya. The power to fix the Supreme Court and the Judiciary as a whole belongs to the people of Kenya and not individual leaders.
Uhuru is not the first President or top politician who has been angered by judicial edicts. The President of Poland has had serious altercations with the country's highest court. The new dispute follows a ruling by the Supreme Court that President Andrzej Duda had no right to pardon a senior state official who had been sentenced for corruption offences while the case was still in court.
The attack on the country’s ultimate judicial body for arbitrating civil, criminal and military cases follows a series of measures to undermine Poland’s other high level judicial institution, the Constitutional Tribunal. The ruling party’s Interference with the Supreme Court sparked international condemnation, led to street protests and strained relations with the European Commission.
In 2011, the Southern African Development Community Summit took a decision to disband SADC Tribunal because it had angered President Mugabe. What sparked off the draconian action was Jeremy Gauntlett SC, lead counsel for a group of 77 Zimbabwean farmers who had challenged the legality of President Mugabe’s land seizure order, succeeded in his case. The decision to ban the Tribunal sparked outrage across Southern African countries because it denied individuals access to the court, undermining human rights and the rule of law.
Attacks on Supreme Courts are not just committed by governments but opposition figures as well. In Venezuela, the Supreme Court, which is packed with government-friendly judges has faced the wrath of the opposition. The pro-government court is particularly hated by President Nicolas Maduro's opponents for its string of rulings bolstering his power and undermining the opposition-controlled legislature.
In India the Supreme Court has passed through the furnace over the years. Different political regimes have tried to destroy it unsuccessfully. Prime Minister Indira Gandhi was infuriated, especially because, on her decisions to nationalise banks and abolish the privy purses of the princes, she had faced obstacles from the courts.
To fix the courts she waited for the eve of the retirement of Chief Justice Sarv Mittra Sikri. The CJ was retiring a day after the 'basic structure' judgment was delivered. That day, Indira threw to the winds the well-established principle that only the senior-most judge succeeded the CJ.
Superseding the three judges next in line in terms of seniority, she appointed Justice Ajit Nath Ray, the most senior of the six judges who had gone with the government all the way. The superseded trio resigned. Indira clamped the Emergency on the country. With a series of drastic amendments to the Constitution, of which the 42nd was the most vicious, she not only defiled the law, but also spread fear among the judges.
Some high courts showed courage, but no judgment against the government emanated from the Supreme Court. The Supreme Court of India survived Indira's vicious antics and has become one of the most powerful in the world.
The Kenyan Judiciary has undergone huge transformation under the new Constitution. Gone are the days when judges and judicial officers were agents of the state. Under the Public Order Act citizens would be arrested, tortured at Nyayo House and subsequently hauled to courts at 6pm by overzealous police officers.
In the courts, they would be denied right of representation by advocates, denied bail and a plea of guilty would be promptly entered by the magistrates, despite protestations from the suspects. This was a dark era and a blot in our history and no Kenyan is prepared to go back there.
Any attempts to fix the Supreme Court and the courts into a pliant institution that will decide cases in accordance with the whims of the Executive must be frowned upon. The Supreme Court must remain fiercely independent on behalf of the people. The duty to fix the Judiciary lies with Kenyans in a properly convened forum—a referendum properly called and convened by the people of Kenya.
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