The judiciary and the long struggle to defend Kenya ‘s constitution Kenya


The slow-fire conflict between Kenyan President Uhuru Kenyatta and the country’s judiciary over the supremacy of the constitution has erupted again. This time the battle has been rushed with the president’s attempt to usurp the powers of the Judicial Service Commission (JSC) to elect judges and judicial officers to the country’s courts.

For two years, claiming the intelligence findings of the intelligence services against them, Kenyatta has refused to formally appoint 41 people selected by the JSC to fill various positions, including the Court of Appeal. This is a challenge to the constitution, which provides him with no discretion in the matter, and numerous court rulings stating that. This week, he partially complied, naming 34 of them, but continuing petulantly blocking six more (one had died temporarily).

His stance has been strongly condemned by civil society groups, parliamentarians and even former Chief Justice Willy Mutunga, who wrote a scathing letter accusing Kenyatta of being “surrounded by pettiness to exercise power “and betray his official oath. But this is not the first time Kenyatta has hit the head with the judiciary, which, especially since the enactment of the constitution 11 years ago, has become much more demanding in enforcing the law on 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 had no independence. As Mutunga observed in 2013, they were essentially “a civil service, forced by the colonial administration and very seldom thought to deal with it.”

Although at the 1963 independence, the constitution protected judges by deliberately isolating them from the executive branch, it showed no coincidence with the ingrained habits of judicial subordination to executive tyranny that had been raised and nurtured under colonialism.

For the next 47 years, with some notable exceptions, the courts were not only silent, but seemingly complicit, as successive presidents and their comrades overthrew all constitutional safeguards and restrictions. The judiciary became little more than a department of the attorney general’s office, with insufficient total insufficiency and few staff.

In a prominent case in 1989, a judge declared the entire bill of rights inoperative and unenforceable, essentially withdrawing all constitutional protections from all Kenyans, because the chief judge had not established rules of procedure for their execution by the judiciary. ‘high court.

Perhaps the lowest point for the judiciary came during the 2007 presidential election dispute, when a lack of faith in its independence saw the opposition take its case to the streets, leading to death. of more than 1,300 people, the displacement of hundreds of thousands and the near collapse of the country. After the violence, an independent judiciary was one of the top priorities of the reformers, who had been fighting for constitutional and judicial reform for more than 25 years.

In many ways, the 2010 constitution was a re-enactment of the enactment of independence and undid many of the ruinous amendments the political class had inflicted on 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 institutions that could defend it.

By contrast, the 2010 constitution was the product of decades of local struggle, a broad national consultation, and had an army of civil society activists, lawyers, and ordinary Kenyans willing to defend it. Most importantly, freed from the executive shackles, the judiciary is rapidly evolving as a backbone and asserts its role as executor of constitutional government.

But it has not been a direct evolutionary march. Some of the judicial interpretations of the constitution have seemed to backfire in the days leading up to Kenya’s rulers. The 2013 decisions that essentially mentioned that the constitutional restriction on integrity did not require people accused of crimes against humanity in the International Criminal Court to erase their names before running for the highest office in the country and subsequently they confirmed the dubious election of President Kenyatta and his alternate, William Ruto, in a widespread trial, made many Kenyans fear that the future might be the past again.

Courts have also controversially upheld colonial-era restrictions on sexual diversity, inexplicably equating gay sex with marriage and suggesting that by recognizing the right to marry someone of the opposite sex, the constitution somehow prohibited it. same-sex relationships.

However, in general, the judiciary seems to have found part of its footing and gained some confidence on the part of Kenyans, on numerous occasions, overturning legislation that violated the constitution and, in the run-up to the 2017 elections, it maintained rules that would facilitate the detection of deceptions to citizens.

Undoubtedly, the high point came with the annulment of that year’s presidential election, which was previously unthinkable. That posed terrible threats for Kenyatta to “revisit” and two months later, after an attack on the deputy justice director, the Supreme Court was unable to convene a quorum to hear a case challenging the holding of repeated elections. before the problems which had led to the nullity were fixed.

Despite “winning” his second term, Kenyatta has continued his war against the judiciary and the constitution, teaming up with his former rival, Raila Odinga, to launch the Building Bridges Initiative, an undisguised attempt to turn back the clock. amending the constitution to begin recreating an all-powerful executive. The initiative resulted in a bill that introduced several constitutional changes.

As in the 1960s, today the legislature has been effectively castrated as the control of the executive and it fell to the judiciary to stop the bill. In May, in another historic ruling, the High Court declared the company unconstitutional.

In a ruling that rejected the unfortunate story of how the pro-independence constitution was mutilated through the amendment process and how Kenyans had to fight to get rid of it, the judges held that altering the basic structure of the constitution could only to do so a constitutional assembly that involved all Kenyans in drafting a new one.

Once again, the sentence has provoked the anger and disappointment of Kenyatta and his acolytes and precipitated acts of retribution. Two of the judges who have blocked his elevation to the appellate court were part of the five-judge bench that issued the ruling.

In a horrific speech in early June, the president declared that the purpose of human rights and autonomy was cooperation with the government and that the exercise of independence by the judiciary was a threat to the constitution itself. which granted independence.

As the judiciary prepares to hear the government’s appeal against the ruling in late June, the question remains whether the judges will once again fulfill the executive’s wishes or whether they will summon the courage to continue their defense. of the constitution and its own independence. Kenyans will be alert with hope, waiting for the last one.

The views expressed in this article are those of the author and do not necessarily reflect the editorial stance of Al Jazeera.

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