It is cheaper to buy a judge than to hire a lawyer. That saying has been true since Kenya’s independence in 1963, but that is slowly changing. Judges are trying to save Africa from lawlessness and from greedy politicians. In Kenya, Malawi, Zambia and South Africa, judges have recently taken a bold stand by handing down sentences that went against the wishes of politicians.
“Africa’s most pressing question is whether the judiciary will become the temple of justice,” says Willy Mutunga, 74, a former Chief Justice in Kenya. He is a member of Justice Leadership, a group of former justice ministers and Chief Justices, founded in the Netherlands in 2015. He is also active as an election observer in several African countries. “Judges must give up their neutrality if the constitution is violated and when there are grave injustices.”
In the past, judicial independence in Africa was a rarity: the government dominated and controlled the judiciary. To anchor democracy and the rule of law, judges are now increasingly showing their teeth.
Last year, for example, in South Africa, the decision of the Constitutional Court to put ex-President Jacob Zuma behind bars for contempt of justice attracted attention. The year before, Malawi was in the news, where a court declared the election invalid for fraud, a first since independence in 1964.
That had happened before in Kenya, where in 2017 Chief Justice David Maraga ordered the elections to be run again. President Uhuru Kenyatta was so outraged that he labelled the judges fraudsters. Maraga then accused the president of undermining the rule of law and vowed to be “willing to pay the ultimate price to protect the constitution and the rule of law.”
In present-day Kenya, another tough battle is raging between the judiciary and the government, led by the president. Earlier this year, President Kenyatta refused to appoint a group of new judges nominated to him. Elections are coming up in 2022, which, as usual in Kenya, will be fraught with fraud and violence. Judges will then have to pass their judgment on the course of the ballot. Kenyatta’s opponents suspect that he will therefore try to appoint as many friendly judges as possible.
The biggest clash between the rule of law and the Kenyan president last year took place in May, when five Supreme Court Justices blocked a government-backed plan for a constitutional amendment. The constitutional amendment bill, commonly known as the Building Bridges Initiative, would secure positions of power among several political patronage groups around Kenyatta and his former opponent Raila Odinga. In order to get the opposition along, the number of parliamentary seats would be increased. Also, a prime minister’s post would be created, which would go to Kenyatta, it was speculated, who could not be re-elected as president. Incumbent MPs had already received more than a thousand euros in bribes to support the proposal, according to news reports. The judges put a stop to this. They called the proposal “illegitimate” and thus stopped “a creeping coup d’état by a kleptocracy trying to stay in power,” activist Okiya Omtatah, who had gone to court, told the BBC’s Focus on Africa programme.
After three quarters of a century of colonialism and almost as many years as independent states, Africa still struggles to build strong and democratic nations. In everyday life, age and origin determined the manners in the clans, the family and the tribe, and respect was of the utmost importance. Those long-standing traditions outweighed the liberal systems that the colonials left behind when they left.
The independence that many African states gained in the 1960s did not turn out to be as decisive a moment as hoped. That expectation was implied in the statement of Ghana’s first president Kwame Nkrumah in the late 1950s: Seek ye first the political kingdom, and all things shall be added unto you. But Nkrumah was wrong: the postcolonial regimes were not so different in habits and ways of thinking from their colonial predecessors. After independence, African states had adopted the forms of government of the white rulers, including symbols such as British wigs and gowns and French cavalry uniforms. What was missing were the essential ingredients for a stable democracy: a strong government, an educated population, a middle class, a free press, an independent judiciary and democratic parties.
A wave of protests in Zambia, Benin and many other African states led to the introduction of multi-party democracy in the early 1990s. But this did not help either. “Elections never lead to change, they are never free, fair and peaceful,” Mutunga says. “Elections are always about money, about those who have the millions to bribe judges and people.”
Ethnic electoral violence in late 2007 and early 2008 brought Kenya, which had always been praised for its stability, to the brink of collapse. More than a thousand people were killed then. In the wake of this dark episode, the internationally acclaimed Mutunga was appointed to reorganize the judiciary. In 2011, he became president of the Supreme Court. After his appointment, the heads of the corrupt judges began to roll. He was averse to the pomp and circumstance that usually befalls African leaders; and was popularly called the Robin Hood of the Kenyan justice. He resigned in 2016 and handed over the mantle to David Maraga, who has since been succeeded at the beginning of this year by former human rights activist Martha Koome. Mutunga’s successors continued to reform the judiciary and did not shy away from confronting the president and parliament.
Yet judges in Kenya still accept bribes. Mutunga even refers to Kenya as a “bandit economy” in which cartels siphon off millions of public money when signing government contracts. It is covered extensively in the media, but the government benefits from not cracking down on it, so as not to offend the political elite.
“Certainly, part of the judicial system is corrupt,” Mutunga agrees. “A righteous judge is one who never thinks of taking or asking for a bribe. But the cartels quickly make supposedly shocking revelations about uncorrupted judges in order to blackmail them. We must oppose this and must judge without fear and without receiving any favor in return.”
Last year again dozens of extrajudicial executions took place of lawyers and activists whose bodies have been found in game parks and rivers. A state governor murdered his pregnant girlfriend and an MP in a nightclub shot a DJ in such a way that he is permanently disabled. Yet both politicians went unpunished. To swim against that tide of impunity, a judge must be courageous.
New protest movement
“It is worth dying for defending the integrity of the judiciary,” says Mutunga. “The rulers are fighting back by bribing judges. But I see more and more how judges cope with that political pressure, how their courage and commitment increase. They work for a better future as they resist cartels, social injustice and murder. In this way they endear themselves to the people and a new protest movement germinates in Africa.”
Despite its massive corruption and the stifling influence of cartels, Kenya is now the freest country in all East Africa. In neighboring Ethiopia, Sudan and Somalia, disputes are being fought out in devastating civil wars, while Kenya is beginning to look like a stable democracy, with the rule of law attached to it. “That’s because the NGO sector is so active in Kenya,” Mutunga thinks. Time and again activists start lawsuits against those in power. “Those activists must use the judiciary to capture the imagination of the population and lead to something new. The judiciary is part of that struggle for alternative and fair leadership.”
This article was first published in NRC Handelsblad on 29-12-2022