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The smooth conflict between Kenyan President Uhuru Kenyatta and the country’s justice system has reopened over the supremacy of the constitution. This time, the president has sparked a battle to try to usurp the powers of the Judicial Service Commission (JSC) to elect judges and judicial officers for the country’s courts.
For two years, with intelligence services claiming secret findings against them, Kenyatta has formally refused to appoint 41 people selected by the JSC to comply with various appeals, including in the appellate court. This violates the constitution, which does not provide any discretion in the matter, and the numerous courts of law that confirm this. This week, he partially complied, naming 34 of them, but he continued to block six others (one died temporarily).
His stance has been condemned by civil society groups, lawmakers and even former Chief Justice Willy Mutunga, who wrote a harsh letter to Kenyatta “with the rigor with which he exercised power” and denounced his official oath. But it is not the first time Kenyatta has been engaged in the judiciary, especially since the constitution was promulgated 11 years ago as it has become much more assertive in demanding that the political class obey the law.
For much of Kenya’s history, judicial independence has been a myth. During the colonial era, the judges were to the liking of the Crown and had no independence. As Mutunga saw in 2013, it was basically “a public function, looking at the colonial administration and rarely wanting to put it in their head.”
Even after independence in 1963, the constitution protected judges, deliberately isolated from the executive branch, which did not prove to be consistent with the rooted habits of judicial dependence on the executive tyranny that grew and nurtured colonialism.
For the next 47 years, with few exceptions, the courts remained silent, seemingly complicit, when the successive president and their friends overthrew all constitutional protections and restrictions. The judiciary became only a department in the office of the Attorney General, with a very limited supply and few staff.
In a major case in 1989, a judge ruled that the full bill of rights did not work and could not be enforced, essentially depriving all Kenyans of their constitutional protection because the main court did not establish rules of procedure for enforcement by the High Court.
Perhaps the lowest point of justice came in the 2007 presidential election dispute, when a lack of faith in independence led the opposition to take its case to the streets, killing more than 1,300 people and displacing hundreds. thousands and almost the collapse of the country. After the violence, independent judiciary was a top priority for reformers, who have been fighting for constitutional and judicial reform for more than 25 years.
In many ways, the 2010 constitution for independence was reinstated and dismantled many of the devastating amendments made by the political class to Kenyans. The pro-independence constitution failed largely because it was imposed by the British, the political class that received it did not believe in it, and after nearly a century of colonial repression, there were few organizations capable of defending it.
On the contrary, the 2010 constitution was the result of decades of local struggle, extensive national consultation, and an army of ordinary Kenyan civil society activists, lawyers, and Kenyans ready to side. Most importantly, freed from the executive branch, the judiciary is speeding up its backbone and asserting its role as an enforcer of the constitutional rule.
It hasn’t been a straightforward evolutionary march, however. Some of the interpretations made by the judiciary about the constitution seemed to detract from the looks given to the Kenyan authorities in the past. The decisions taken in 2013 essentially required the integrity bar not to clear the names of people accused of crimes against humanity in the International Criminal Court before presenting them to the highest office in the territory and then confirmed President Kenyatta and questionable elections. His successor William Ruto held a wide-ranging trial and many Kenyans feared the future could be a repetition of the past.
The courts have controversially reaffirmed the colonial era against sexual diversity by equating sex with marriage in a homosexual manner, and have suggested that recognizing the right to marry someone of the same sex somehow prohibited the constitution from same-sex relationships.
However, mainly, the judiciary seems to have found its basis and gained a measure of confidence in Kenyans, on more than one occasion, repealing legislation that violated the constitution and maintaining it in the run-up to the 2017 elections. rules that would make it easier for citizens to detect fraud.
Certainly the high point came with the cancellation of that year’s presidential election, something previously unthinkable. This posed serious threats to Kenyatta’s “re-visit” and two months later, after the attack on the Supreme Court, the Supreme Court was unable to convene a quorum to decide whether to dismiss the repeated election.
Despite “winning” the second term, Kenyatta has continued his war against the judiciary and the constitution, with Raila Odinga joining his former rival to launch the Building Bridges Initiative – a disguised attempt to change the clock to start rebuilding a powerful executive constitution. The initiative led to a bill that proposed numerous constitutional changes.
As in the 1960s, even today the legislature has been effectively controlled as an executive control and it has been left to the judiciary to stop the bill. In another historic trial in May, the company ruled the company unconstitutional.
The ruling reaffirmed the unfortunate history of how the pro-independence constitution was cut and how the Kenyans had to fight to dismantle it, stating that judges could only manipulate the basic structure of the constitution by a constitutional assembly. it involved all Kenyans when it came to writing the news.
Once again, the resolution has sparked anger and despair from Kenyatta and his acolytes and has prompted retaliatory actions. Two of the judges who managed to rise to the Court of Appeal who took part in the five-judge panel that handed down the verdict.
In a scathing speech in early June, the president stated that the goal of human rights and autonomy was cooperation with the government and that the exercise of independence by the judiciary was a threat to the very constitution that gave it independence.
As the judiciary is now preparing to hear an appeal against the government’s ruling in late June, it remains questionable whether judges will once again comply with the executive’s wishes, or call for courage to continue defending. constitution and their independence. The Kenyans will be on the lookout for the latter.
The opinions expressed in this article are those of the author and do not necessarily reflect the attitude of the Al Jazeera editorial.
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