Saturday, June 23, 2012

The Roaring Rawlings

In a sea of well-cut Savile Row suits and ladies in mourning black hats and dresses, the thickset, elegantly graying man cut an impressive figure in a black open-neck Africa shirt.

That was during the burial of Internal Security Minister Prof. George Saitoti. During the burial the former dictator-turned-democrat impressed mourners with his eloquence, especially when he regretted humanity’s inability to harvest the dead man’s brilliant brain and transfer it to a living one.

But unlike his friend Prof. Saitoti, whose manners he extolled Kenyans to “imbibe”, who was handpicked from a classroom by retired President Daniel arap Moi and handed high profile state jobs on a silver platter, Rawlings is a bare knuckled politician who learnt his tricks from the school of hard knocks.

As a junior air force officer he narrowly cheated death after being condemned by a court marshal for leading a mutiny while as president he is said to have survived numerous coup and assassination attempts.

Born Jeremiah Rawlings John in 1947, later renamed Jerry John Rawlings, to a Ghanaian mother and a Scottish father JJ, as his he is popularly known among his followers, is the most influential political figure in Ghana after the founding father Kwameh Nkrumah.

After joining the Ghanaian Air Force in 1968, where he distinguished himself by winning the coveted “Speed Bird Trophy” for excellence in aerobatics skills, the man who confesses to having an obsession for drawing gorgeous women during his youth burst into the limelight when he led a mutiny in 1979.

In a statement read in court on his behalf by his defense, Rawlings won hearts across the country he sensationally explained that his actions were prompted by the social injustices that were bedeviling the Ghana at that time.

Apparently inspired by Rawling’s courtroom oratory, a group of officers instigated a successful putsch in June 1979 and released him from prison. Through a ruling body named the Armed Forces Revolutionary Council (AFRC), Rawlings and his ruling cronies executed two former military heads of state Gen. Ignatius Acheampong and Lieut. Gen. Fredrick Akuffo and five former generals, whom he accused of committing crimes against the people and the country.

Other prominent people killed under what Rawlings and his junta termed “house-cleansing exercise” included Supreme Court Justices Kwadjo Agyepong, Frederick Sarkodie and Cecilia Addo.

Some Ghanaian historians have exonerated the former dictator from these cold blood murders by claiming that the country was in a state of anarchy with both civilians and lower ranks members of the military baying for the blood of the deposed rulers.
AFRC yielded power to civilian leader Hilla Limann but came back to power through another coup in December 1981 to get rid of “weak civilian rule” which had led “the nation down to total economic ruin”. After imprisoning Limann and 200 other politicians, Rawlings established the People’s Defense Committees in neighbourhoods to monitor economic management in local factories.

“When the failure of these and other populist measures had become clear by 1983, Rawlings reversed course and adopted conservative economic policies, including dropping subsidies and price controls in order to reduce inflation, privatizing many state-owned companies, and devaluing the currency in order to stimulate exports,” Encyclopedia Britannica notes. “These free-market measures sharply revived Ghana’s economy, which by the early 1990s had one of the highest growth rates in Africa”.
Despite ruling the country with an iron fist for a decade before being democratically elected in 1992, economic experts have credited Rawlings regime for initiating radical policies like decentralization of government services from Accra to the rural regions which created the foundation on which the Ghanaian democracy and economy stands today.

After the fall of the Berlin Wall and the end of the Cold War, Rawlings aligned himself with the West which saw IMF and the World Bank pumping more than $5 billion into the Ghanaian economy leading to a huge business growth and improved standards of living. This led to his being accused of “betraying the revolution” by his left-wing comrades.

To qualify as a candidate in the 1992 multiparty elections, “JJ” retired from the army and founded the National Democratic Congress (NDC) through which he successfully won the presidential race with a landslide majority of 58.3 percent. The figure remains the highest score in the country’s history and an endorsement of his radical economic policies that drastically curbed inflation.

Although foreign observers declared the poll to be free and fair the opposition led by Sammy Kuffuor, who later became president, claimed there was widespread irregularities and urged their supporters to boycott the subsequent parliamentary elections. This saw the NDC win 189 out of the 200 seats available in the national assembly, giving Rawlings a four-year term backed by a rubberstamp parliament.
By the time he was seeking another term in 1996 Rawlings had already made history as the first democratically elected Ghanaian president to complete his term.

His 19-year reign as both military dictator and elected leader were characterized by eccentricity and flamboyant displays that made him a household name not only in Ghana but also across the continent. Besides mobilizing his wife and ministers to join citizens in digging trenches, sinking boreholes and constructing roads Rawling’s presidential motorcade would often give lifts to people on the road.

Other times he would stop his entourage to borrow a cigarette from a man on the street, take a few puffs and put the rest behind his ear for later all in a quest “to be equal with everyone”, as he would later explain.

This outgoing mien was in display when he visited Kenya in May to update President Mwai Kibaki on the Somalia situation as the African Union Special Envoy. During his stay at the Tribe Hotel in Nairobi he easily mixed with ordinary people and took photos with the hotel staff and security guards.

“I knew that Ghana would not be brought out of the political abyss of 1981 without a visionary, but more importantly, the people were yearning for nothing less than a popular democracy,” Rawlings said during an interview with Rev. Jesse Jackson on CNN’s Both Sides with Jesse Jackson in 1999. “They were asking for nothing more than the power to be part of the decision-making process of their country…they wanted a voice in deciding their everyday life, as it is done in the West, and not for politicians to be dominant and who are all-knowing to be at the helm of affairs of everyday life in Ghana”.

When he reached his constitutional eight-year term in 2000, Rawlings endorsed his vice-president John Evans Atta-Mills who was defeated by John Agyekum Kufuor of New Patriotic Party (NPP) in a run-off. Atta-Mills is the incumbent head of state after winning the 2008 elections by a one percent margin in the run-off.

But the fact that his party National Democratic Congress (NDC) and former vice-president is in power has not gagged the outspoken Rawlings from criticizing and pointing out what he terms as weaknesses in the Ghanaian society today.

“I remember I used to warn ourselves that if we do not deal, restore the moral behaviour and ethical values of our society, we will sink deep,” he observed during a gala to honour a testimonial match for former Bayern Munich and Black Star player Sammy Kufuor. “All those big countries we see, they have not thrown their values overboard in spite of all the money they have. How could you adopt money to replace your values? I have said over and over and I will continue repeating it”.

Dubbed “Mr. Boom” by the media for his explosive statements whenever he speaks his mind, Rawlings is yet again in the fray of the Ghanaian politics where he has openly asked his fellow countrymen to give his wife Nana Agyeman-Rawlings “the chance to rescue the country from the current leadership crisis”.

Accusing “the current crop of NDC (the party he formed in 1992) members, especially those in leadership of leading the party far from the principle and values on which the party was founded”, Rawlings has been drumming up support for his wife in rallies across the country in what have been termed a ploy to rule again by proxy.

But after being rejected by NDC delegates as the party’s presidential candidate last July, she only got 90 votes against Atta Mills 2,771, many commentators termed the crashing defeat as a confirmation that JJ’s fading political influence in Ghana.
“This defeat was a clear sign that the NDC is fed up with Mr. Rawlings,” Mr. Jacob Manu, a governance expert, told the press. “Most Ghanaians have come to see Mr. Rawlings as someone who thinks he is the only wise man in Ghana. This cannot be the case and a time would come when the people would kick against you”.

Rawlings married Nana in 1977 and they have four children, three daughters and a son. The son, 24, is called Kimathi Rawlings after the famous Kenyan freedom fighter Dedan Kimathi whom the former Ghanaian leader greatly admires as he confessed during his recent visit to Kenya. Nana recently filed a lawsuit seeking to against NDC seeking to take back the party’s umbrella logo which she claims is her intellectual property.

Among the accusations that the vocal polo-loving leader has leveled against the current regime is an attempt to revive and strengthen Kwame Nkrumah’s Convention People’s Party (CPP).

President John Atta Mills have taken several key attempts to immortalize Nkrumah’s legacy. Besides the country spending a whole year celebrating the century anniversary of Nkrumah’s birth in 2010 there is now a public holiday to mark the founding father’s birthday on September 24 and an oilrig that has been named after him.

While implying that he would like to see his former vice-president defeated by the opposition NPP in the upcoming elections so that “we can take back our party” Rawlings, who has since been stripped of diplomatic courtesies in Ghana and the country’s missions abroad, minced no words in his verbal attack.

“So long as they hold on to power and with some of our supporters persistently refusing to see the truth and what should have been done, then it becomes difficult to take back our party,” he was quoted in Ghanaian media saying in May this year. “Some are justified in saying those in office are not genuinely minded, NDC spirited, NDC-hearted people and want to destroy the party in favour of something else”.

With his nickname JJ coined into Junior Jesus by fanatical supporters or Junior Judas by opponents at the height of his power during his two decade reign, many Ghanaians appear tired with his “big brother” attitude and apparent political hangovers of yesteryears, a fact confirmed by strong sentiments in the press and his wife’s humiliating defeat in the NDC primaries.

“I am not a bitter person and very much willing to forgive this ignorant political novice who has not matured beyond adolescence and still plaque by infantile tantrum when he does have his way,” wrote columnist Phillip Kobina Baidoo in The Chronicle, a Ghanaian newspaper. “His actions during his 19 year reign were eerily similar to the erroneous prescription of medieval parish priest who during those highly contagious fatal epidemics encouraged their congregants to gather in churches to pray for God’s intervention while inadvertently spreading the contagion”.

Despite sharp criticism at home, Rawlings remains relatively popular across the continent as evidenced by invitations to major gatherings and being accorded respect by sitting heads of state as was witnessed when he visited Kenya last week.

In October 2010, the 64 year-old was appointed the African Union (AU) Envoy to Somalia by the Union’s chief Jean Ping with the task of “mobilizing the continent and the rest of the international community to fully assume its responsibilities and contribute more actively to the quest for peace, security and reconciliation of Somalia”.

Besides being an AU Envoy to Somalia, Rawlings also gives lectures and talks around the world, the most famous being the lecture he gave at the prestigious Oxford University in the United Kingdom under the title “Security and Democracy in Africa”.
Asked about what he would like to be remembered for Jerry John Rawlings turns philosophical in what many believers would term blasphemous.

“My legacy to the people of Ghana and that I never let God do anything for me. I did it first”.

Friday, June 15, 2012

Kenyan Judicial Revolution

Driven by the new found freedom granted them by the just promulgated constitution, Kenyan judges have been giving verdicts that are more often than not on the collision course with conventional opinion. While some of these rulings have been welcomed with a sigh of relief for the tensions they have diffused, others have evoked out right anger and condemnation from both political class and wananchi alike.

“This court that is telling us that elections could be done in December or March, what sort of court is that,” Prime Minister Raila Odinga was quoted by media outlets saying during a political rally in Kisii. “This is a Kangaroo court”.

This statement triggered a barrage of condemnation with the Chief Justice Dr. Willy Mutunga terming the PM’s utterances an act of impunity. But this incidence is just one of the many instances where the judiciary has rubbed members of the ruling class and the public the wrong way.

Both legal experts and laymen agree that this is a great paradigm shift from a system where the judiciary was seen as institution established to rubberstamp the orders of the executive. The new law is proving to be a real ass.

From declaring that Sudanese President Hassan Omar-al Bashir should be arrested if he dare step in Kenya to throwing the political game plans into disarray by laying a basis for a multiple of choices of election dates, the Kenyan courts are breathing bubbles of confidence never seen before.

“The bold decisions by the judges in recent times is an indicator that the independence of the judiciary is not only in written form but also practice,” explains former Justice and Constitutional Affairs Minister Mutula Kilonzo, who is now heading the education portfolio. “This shows that the judiciary is not only independent but also its there to serve the interest of the people regardless of their class or station in life”.

The minister, who is also a senior advocate, cites the Prime Minister’s apology to the Chief Justice as a historic case in Africa where the executive have swallowed its pride to apologize to the judiciary.

“Speaking as an advocate I am very impressed to see judges going against populist feelings to implement elements of the constitution like giving bond to suspects of murder,” Mr. Mutula observes. “This coupled with the decision on the election date is an indicator that the change that Kenyans have been fighting for over the decades is finally here with us”.

The Mbooni member of parliament explains that the reason why he recanted on his push for a December election is because the March date was decided by the High Court, which he has a lot of faith and respect for. While celebrating the fact that for the first the country is fixing the polls date under the direction of the judiciary, Mutula says that it’s hypocritical for politicians to condemn the IEBC decision yet when he tried to introduce the constitutional amendment bill in parliament they are the ones who advised him to wait for the court decision.

“When a judiciary is independent it means it is pronouncing its judgments as they are supposed to be in the law, a system which many Kenyans specially politicians from the old order, were not used to,” he observes. “For the first time the politician is realizing that the court will not do things to please him as it was in the past hence the spirited opposition to bold judicial decisions”.

The minister who is also a legal expert says that there are two philosophies that governs independent judiciaries across the world; positivism and activism. While in the former system the judges interpret the law as it is written, in the latter the interpretation is done in a manner that is pro-people. This means that while the letter of the law might say that the elections should be held in August, the judges factored in other aspects necessary to advance the cause of justice like, the principles agreement, life of parliament, national cohesion among other factors.

He also says that drafters of the new constitution steered the country towards judicial activism as stipulated in Article 159 (1) which states that “Judicial authority is derived from the people…” where judges base their decisions not only on the letters of the law but also the prevailing circumstances of interests to Kenyans. This explains why many judgments made by the courts under the new constitutional dispensation have been intriguing to the general public, most of whom are laymen in law.

One of the first of these rulings is when the High Court judge Justice Daniel Musinga directed that presidential appointments for the offices of the Chief Justice, Attorney General, Director of Public Prosecutions and the Controller of Budget be nullified since they were unconstitutional.

In making the ruling Justice Musinga took the activism route by observing that although there were some consultations between the two principles it was apparent that there was no consensus. Despite the fact that consensus or agreement between the two principals is not a constitutional requirement, Kenya Law Reports writes, “the values and principles stated under Article 10 of the Constitution and the spirit of the National Accord and Reconciliation Act ought to have been borne in mind in making the nominations”.

Activism, according to Mutula Kilonzo, is a progressive attitude that only evokes opposition among anti-reformists who would prefer not to see a New Kenya.

“Activism from a judicial sense refers to a judge who when presented with a case where a village chief went against the law to save a situation, he acknowledges the law was contravened but the chief is empowered to do so in such situations, a view adopted by the bench ruling on the election date,” the outspoken cabinet minister says. “But on the other hand a positivist judge will say the chief has broken the law hence he should be punished, without considering other factors”.

Another litmus test for the new found judicial “revolution” has been the case of the Deputy Chief Justice (DCJ) Nancy Makokha Baraza. After the DCJ was alleged to have threatened a security guard at the Village Market the calls for her resignation were deafening, prompting her boss Dr. Willy Mutunga to convene the Judicial Service Commission (JSC). The recommendations for her immediate suspension and the setting up of a tribunal to investigate her conduct were swiftly implemented by the head of state.

But determined to go down fighting, the Lugulu Girls High School alumnus moved to court to petition the legality of the tribunal, in which the High Court issued temporary orders restraining the tribunal from investigating her until the petition was determined. However, the same court has since determined that the former chair of Federation of Women Lawyers of Kenya (FIDA) must face the panel formed to investigate her.

“Having considered all the grounds raised by the petitioner and the response by the respondents, we think that the issue raised cannot entitle the petitioner to the orders sought,” the three-judge bench comprising of Justices Mohammed Warsame, Hellen Omondi and George Odunga said, adding that the JSC worked within its legal mandate in recommending the formation of the tribunal.
The tribunal is yet to begin its sittings.

Like Justice Nicholas Ombija who ordered that Sudan President Omar Bashir should be arrested if he dare set foot in Kenya after having sued a bank for a defaulting credit card, High Court judge Justice Isaac Lenaola have been in the centre of several rulings with far reaching political implications.

After heading the bench that ruled that elections will be held in March 2013 unless the two principals agree to dissolve the coalition in writing the judge, who is also a guest lecturer at the Kenya School of Law, issued an order barring any public discussion on the presidential candidature of Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto until a case before him was heard and determined.
The ban has since been lifted.

The High Court caused yet another upset when a petition lodged against the vetting of judges was granted liberty and the process halted awaiting ruling. The Constitutional and Human Rights division of the High Court have since dismissed the petition on the grounds that “the Vetting of Judges and Magistrates Act, 2011 was sanctioned by the new Constitution and its provisions did not violate the doctrines of separation of powers and the independence of the judiciary and that it did not threaten the constitutional rights of judges and magistrates”.

Other instances where the courts apparently went against the public tide includes the postponement of the Kamukuji by-elections in the eleventh hour after contestants have spent money in the campaigns and the attempt to declare the constitutional referendum in 2010 unconstitutional a few months before the material day.

Mwalimu Mati, the Mars Group Chief Executive Officer and a seasoned advocate, says that the fact that courts have become bold enough to make unpopular decisions is a good precedence since it shows the legal regime is gradually getting a life of its own.

“The same atmosphere was experienced in South Africa in 1994 when the new constitution came in force,” Mr. Mati says. “The courts were making decisions that the public was not used hence there were upsets where some decisions of the Supreme Court were deemed too radical, but as time went by the people became accustomed to the new dispensation”.

Mr. Mati says Kenyans should be patience since the judicial system is in the process of transition from the old order to the new where the courts make decisions devoid of interference from the other arms of government.

“While I agree that some decisions made by the courts are unpopular, it is better and safer that the constitutional implementation process be in the hands of the judiciary rather than in the courts of popular opinion,” he says. “After all what is popular today might be unpopular tomorrow and vice versa”.

However Mr. Mati opines that the success of the whole process will be hinged on the quality of judges, a fact that he says is being taken care of by the ongoing process of vetting judges and magistrates.

“Although I strongly support the recent spate of bold decisions by the courts I am disappointed by the judges’ inability to put their foot down in implementing their decisions,” he laments, quoting a warrant of arrest against the son of a former powerful politician has not been implement despite the judge making a ruling. “This should not be the case since a judgment without execution is of no consequence”.


Kenya has witnessed several landmark court decisions some of which had a bearing on the nation’s political, economic and social destiny. The following are a few examples.

• 1953: In one of the most dramatic political cases in Africa after the Rivonia Trial where South African leader Nelson Mandela were arraigned in court by the apartheid regim, colonial judge Ransley Thacker sentenced six freedom fighters, popularly known as the Kapenguria Six, including future founding father Jomo Kenyatta to seven years imprisonment and hard labour for conspiring to murder all whites in Kenya. The key witness, Rawson Macharia, later confessed that he had been given incentives to testify including a scholarship to study public administration at the Exeter University College in the UK.

• 1987: the High Court rules that lawyer S.M Otieno should be buried in Nyalgunga by his Umira Kager clan, thwarting the efforts of his firebrand widow Wambui Otieno to inter him at their Nyalgunga home.

• 1995: Nakuru Magistrate William Tuiyot sentences politician Koigi wa Wamwere and four others to four years and six lashes of the cane for robbery with violence. The former Subukia legislator maintains he was fabricated.

• 2000: Justice Alnashir Visram takes the awarding of libel damages to historical heights when ruled that authors of the book Dr Iain West’s Casebook, dealing with the death of Dr. Robert Ouko, should pay former cabinet minister sh30 million for damages on his character from the book’s content.

• 2002: Justice Joyce Aluoch proved yet again that the sword of justice is mightier than the pen by ordering The People Daily to pay Nicholas Biwott sh20 million in compensatory damages and a similar amount in exemplary damages for publishing an article implicating the politician in underhand dealings involving the construction of the Turkwell Gorge Hydro-Electric Power project.

• 2007-2012: The courts sets a historic record by nullifying the election of ten members of parliament in petition. Only three individuals managed to overcome the bruising contests of by-election campaigns to make it back to the August House.