Pe­ti­tion on re­moval of chief jus­tice of Kenya not unique

The East African - - NEWS - SEKOU OWINO

The events of the past fort­night in Kenya — start­ing with the de­ci­sion of the Supreme Court to de­clare the Au­gust 8 pres­i­den­tial elec­tion to have been in­valid, null void fol­lowed by re­crim­i­na­tions and ful­mi­na­tions on the part of the pres­i­dent and end­ing with a pe­ti­tion lodged by a mem­ber of the Na­tional As­sem­bly of Kenya seek­ing to have the Chief Jus­tice re­moved from of­fice — re­minded me of a book I read re­cently.

As chaotic as all of the above ac­tions may seem, they share an im­por­tant plat­form that is of­ten for­got­ten: They were un­der­taken pur­suant to pow­ers and rights con­ferred by the Con­sti­tu­tion. In other words, it is the Con­sti­tu­tion of Kenya at work to­wards per­fect­ing Kenya’s democ­racy.

Less than three months ago, for­mer US Sec­re­tary of Sec­re­tary of State, Con­doleezza Rice, re­leased a book ti­tled Democ­racy: Sto­ries from the Long Road to Free­dom in which she asks the ques­tion whether democ­racy as un­der­stood in the West is on the re­treat world­wide. She then shares some price­less in­sights into the demo­cratic jour­neys of a num­ber of coun­tries around the globe.

In­ter­est­ingly, Kenya is one of the coun­tries cited. She says that in go­ing through the ex­am­ples, a clear point is that in­sti­tu­tions of­ten get un­der in­tense fire and scru­tiny in the quest for democ­racy. She then ob­serves pre­sciently: “Colom­bia is a tale of find­ing the sweet spot be­tween chaos and au­thor­i­tar­i­an­ism that we call democ­racy. But that the jury is still out on Kenya and Ukraine.”

Kenya’s Pres­i­dent Uhuru Keny­atta may be shar­ing the sweet spot mo­ment with Colom­bia’s for­mer pres­i­dent Al­berto Uribe. They both ac­cepted ju­di­cial de­ci­sions that were un­pleas­ant for them po­lit­i­cally. In Keny­atta’s case, the an­nul­ment of his claim to vic­tory in the elec­tion of Au­gust, 2017. In Uribe’s case, by hav­ing to ac­cept the an­nul­ment of a law which sought to re­move pres­i­den­tial term lim­its.

In Kenya, the pe­ti­tion filed with the Ju­di­cial Ser­vice Com­mis­sion of Kenya seeks the re­moval of the Chief Jus­tice from of­fice on claims to the ef­fect that he had vi­o­lated the ju­di­cial Code of Con­duct and Ethics and was also cul­pa­ble for gross mis­con­duct and abuse of of­fice. Even though it is framed in fairly pithy terms, one thing is clear: the grava­men of the com­plaints is un­hap­pi­ness with the sup­posed role of in­flu­ence of the Chief Jus­tice in the pe­ti­tion which re­sulted in the nul­li­fi­ca­tion of the pres­i­den­tial elec­tion.

The framers of the con­sti­tu­tion ap­peared to have ap­pre­hended this very even­tu­al­ity and tried to ad­dress this by pro­vid­ing im­mu­nity to ju­di­cial of­fi­cers against ac­tions drawn from dis­plea­sure from the de­ci­sions made by judges in good faith and in ex­er­cise of their ju­di­cial power.

This too is not new to Kenya. His­tory is re­plete with strug­gles for democ­racy where the ju­di­ciary swings the sword of con­sti­tu­tional or­der against the other arms of gov­ern­ment and more so against the Ex­ec­u­tive branch which then leaves the rest of the polity in trep­i­da­tion.

Pres­i­dent Franklin Roo­sevelt of the US was a vic­tim of un­pleas­ant de­ci­sions by the US Supreme Court which he thought was ide­o­log­i­cally hos­tile to his “New Deal” poli­cies. In the en­deav­our for po­lit­i­cal con­tain­ment of the Court, a Court pack­ing Bill was in­tro­duced in the form of “The Ju­di­cial re­form Bill, 1937,” to add more jus­tices to the Supreme Court. The hope was that if the Bill was passed into law, the pres­i­dent would have been able to ap­point more friendly judges to the Court and thereby have his way in the event of chal­lenges to his ad­min­is­tra­tive pro­gramme. The Bill failed. This con­cern re­mains per­sis­tent in the ob­ser­va­tion that con­tem­po­rary theme in nascent democ­ra­cies is the strug­gle to bri­dle an out­sized Ex­ec­u­tive arm of gov­ern­ment.

Back to Kenya, the pe­ti­tion for the re­moval of the Chief Jus­tice may just be an­other ex­am­ple of Roo­sevelt’s at­tempts at chang­ing the bal­ance of power by an Ex­ec­u­tive (and or its sur­ro­gates) that takes um­brage with one de­ci­sion or an­other of the Court. What­ever the mer­its of the pe­ti­tion, its pro­gres­sion and in­ves­ti­ga­tion of the allegations therein will be of great pub­lic in­ter­est in the days to fol­low.

What needs to be said at this junc­ture is that while Kenya is not out of the woods, yet, its present cir­cum­stances are not unique. There are fears that the an­nul­ment of the pres­i­den­tial elec­tions may re­sult in po­lit­i­cal and even con­sti­tu­tional crises which may be al­to­gether bad for the coun­try. But once again, Rice’s book makes an im­por­tant point that the path from au­toc­racy and au­thor­i­tar­i­an­ism to­wards democ­racy is not and has never been smooth anywhere. In her words, democ­racy is in its first mo­ments, messy, im­per­fect, mis­take-prone and frag­ile, all of which may be present in Kenya in one mea­sure or an­other.

I opine that Africans sur­prised at Kenya’s Supreme Court de­ci­sion of an­nul­ment of a pres­i­den­tial elec­tion would do well to read Rice’s book and heed its lessons. The jour­ney to­wards con­sti­tu­tional per­fec­tion is laden with dis­ap­point­ments and joys de­liv­ered by the courts.

Sekou Owino is the head of le­gal ser­vices at NMG

Newspapers in English

Newspapers from Kenya

© PressReader. All rights reserved.