PATRICK GATHARA: Judiciary a barrier to realisation of 2010 law governance vision

The simmering conflict between President Uhuru Kenyatta and the Judiciary over the supremacy of the Constitution has once again burst into the open.

This time, the battle has been precipitated by the President’s attempt to usurp the powers of the Judicial Service Commission to pick judges and judicial officers for the country’s courts.

Last week, after he partly complied, appointing 34 of them, but petulantly continuing to block six others (one has died in the interim), his stance was roundly condemned by civil society groups, parliamentarians and even Chief Justice Martha Koome and her predecessors.

Willy Mutunga penned a scathing letter accusing Kenyatta of being “garlanded in the pettiness of performing power” and betraying his office oath, while David Maraga granted a TV interview on the matter . 

This is not the first time Kenyatta is butting heads with the Judiciary which, especially since the promulgation of the Constitution, has become much more assertive in demanding compliance with the law from the political class.

For much of Kenya’s history, judicial independence has been a myth. In colonial times, judges served at the pleasure of the Crown and lacked independence. As Mutunga observed in 2013, they were essentially “a civil service, beholden to the colonial administration and very rarely minded to stand up to it”.  

Although at independence in 1963, the constitution protected judges, deliberately insulating them from executive power, it proved no match for the ingrained habits of judicial subservience to executive tyranny that had been bred and nurtured under colonialism.

Over the next 47 years, with a few notable exceptions, the courts were not just silent, but seemingly willing accomplices, as successive presidents and their cronies demolished all constitutional safeguards and restraints. The Judiciary became little more than a department in the Attorney General’s office, grossly underfunded and understaffed.

In one prominent case in 1989, a judge declared the entire Bill of Rights inoperative and unenforceable, in essence stripping all Kenyans of their constitutional protections, because the Chief Justice had failed to set rules of procedure for its enforcement by the High Court.

In many ways, the 2010 Constitution was a reset of the one promulgated at Independence and undid many of the ruinous amendments the political class had inflicted on Kenyans.

Unlike it, however, the 2010 Constitution was the product of decades of local struggle, wide national consultation and has an army of civil society activists, lawyers and ordinary Kenyans willing to stand up for it. And most importantly, freed from Executive shackles, the Judiciary is quickly evolving a backbone and asserting its role as the enforcer of constitutional rule.

However, even as Kenyans line up to support and defend the Judiciary, we must not lose sight of the fact that, as an institution, it in many ways continues to be a barrier to the realisation of the governance vision embodied in the Constitution.

A good example of this is the continued detention of tens of thousands of Kenyans in our prisons despite not being convicted of any crime. The Judiciary has hollowed out the constitutional guarantees of liberty and bail by continuing to allow police to hold suspects without charge under the pretext of completing investigations (a practice the High Court has already ruled to be unconstitutional) and demanding exorbitant amounts for bail.

The latter has resulted in half the prison population being made up of pre-trial detainees, 90 per cent of whom have already been granted bail but cannot afford to pay it. And given that the constitution forbids “cruel, inhuman or degrading” punishment, by continuing to send Kenyans to violent, unsanitary and overcrowded jails, the Judiciary is participating in the violation of this prohibition. 

Further, some of the Judiciary’s interpretations of the Constitution have seemed like throwbacks to the former days of kowtowing to Kenya’s rulers.

Decisions in 2013 that essentially said the constitutional bar for integrity did not require people accused of crimes against humanity at the ICC to clear their names before running for the highest office in the land, and that subsequently upheld the dubious election of President Kenyatta and William Ruto in a widely-panned judgement, have made many Kenyans fear that the future could be a rerun of the past.

This also includes the upholding of colonial-era strictures against sexual diversity.

None of this should be construed as an endorsement of, or justification of, Kenyatta’s own constitutional violations. We must continue to demand that he comply with it and appoint the 6 judges.

However, while doing so, we must also keep in mind that threats to the 2010 Constitution do not only emanate from the Executive. If we are to be truly vigilant, we must not gloss over the unconstitutional acts perpetrated by the Judiciary itself.