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.