Petition on removal of chief justice of Kenya not unique
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