By Willy Mutunga, Former Chief Justice and President of the Supreme Court
The Kenyan elite and its variants in the political, corporate (licit and illicit), civil society, media, intelligentsia and the diaspora, need to grow up and cease their superficial dramas and look past their noses to see that their theatrics have far-wide reaching consequences that affect millions of lives.
But the million-dollar question is can they ever grow up?
The factions of the divisive Kenyan elite have consistently subverted one important pillar in the 2010 vision of the Constitution – The one on building strong institutions to deliver on the promise of democracy to the country.
The Judiciary continues to endure vicious attacks on its independence and whenever elections take place, followed as they are invariably by electoral disputes – the Judiciary is never spared. More likely, it gets thrown into centre ring for all sides to rain their blows.
We have had two presidential elections in 2013 and 2017 with petitions filed challenging the victors in the two respective elections. The elite factions have used Mahakama ya Juu (the Supreme Court) as their political punching bag. Justice, according to factions, is only done when the apex court decides in their favour. Since someone has to lose, the losing party does not spare the court and in turn, aggravates the already shaky public confidence for the apex court.
Let me remind you of some facts pertaining to the two presidential petitions that you may have forgotten.
In 2013, the Supreme Court of six judges unanimously dismissed the petitions filed by Coalition for Reform and Democracy (CORD), then led by Right Honourable Raila Odinga, together with non-profit organisation AFRICOG, (Africa Centre for Open Governance).
Jubilee was one of the respondents.
Before the petition however, Jubilee supporters, no doubt encouraged by their leadership, undertook a campaign on social media and other forums, against my person. The argument by Jubilee followers was that I was a friend of Raila and was, therefore, biased in his favour. CORD followers did not come out to defend me either. I think they believed and probably hoped the assumptions were true.
After our decision, I quickly earned the support of Jubilee followers and the ire of CORD supporters who quickly christened me “Chief InJustice.”
At Kasarani on April 09, 2013 I arrived early to witness the swearing-in of President Uhuru Kenyatta and the Jubilee followers in the sports centre gave me a thunderous standing ovation after the master of ceremonies announced my arrival. The reception was so overwhelming and loud, one would have thought I was the highlight of the day!! But I didn’t like the feeling either as, there was no need for any applause as we in the Supreme Court were just doing our jobs.
I had to wonder that if I had been anywhere else, in another stadium in Western Kenya or Ukambani at that moment, I would have most certainly been verbally attacked and abused by opposition supporters. It was clear that divisive politics undertaken by the Kenyan elite would continue to be the curse of our politics.
Raila played the consummate statesman by declaring that he accepted our decision, but did not agree with it. However, his running mate, Honourable Kalonzo Musyoka, told the Kenyan public that the Court had been bribed and confirmed the bribes were hidden in offshore accounts. He also claimed he had details of these accounts.
When challenged to reveal this evidence to the Judicial Service Commission (JSC) to enable it to start disciplinary proceedings against us, he went into hiding much like the accounts he had talked about.
The claim we were bribed dealt a major blow to the Judiciary as it was tantamount to calling us corrupt and lacking in integrity as judges in the highest court of the land. Even though all the allegations were false, the public’s faith in us was affected.
Raila himself modified his earlier position by calling us Mahakama ya Bandia (Fake/False Court) but to his credit, he later apologized for his attack on the apex court.
Over the years since that decision it seems some critics have forgotten we were six judges who delivered that unanimous judgment together and I was tasked with reading it on behalf of the Court but I ended up being the sole target of the attacks.
This is probably because of the cult of personality and responsibility of a leader, as collective leadership rarely counts in electoral disputes.
Today, these attacks on the Judiciary have been revived with greater venom by some followers and supporting intellectuals of the National Super Alliance (NASA) since the September 01, 2017 decision by the Supreme Court. Raila and the rest of the planet, for that matter, have declared, and rightly so, the 2017 Supreme Court decision “historic.”
Some weeks before the filing of NASA’s petition the NASA coalition had volunteered this political advice: they will give the Supreme Court another chance to redeem itself from the infamy and stain of its 2013 decision. In my book that’s deliberate intimidation, however, I don’t think the Supreme Court was deterred.
As soon as the decision was delivered it was now, “the losers”, to get on stage and comment on the decision. President Kenyatta started on the right footing repeating Raila’s words like any statesman: “We accept but we do not agree with the decision,” and he also called for peace among neighbours rightly stating “politicians come and go. Neighbours do not.”
The President and his deputy left the State House stage only to appear later at Buma Market in Eastlands, Nairobi for another showdown.
I watched in distress as Chief Justice Maraga, Deputy Chief Justice Mwilu, judges of Supreme Court Wanjala and Lenaola were called “Wakora.” “Wakora” in Kiswahili does not only mean what the media translated as “thugs.” Yes, it could mean that among other equivalents: con persons, cheats, thieves, robbers, corrupt individuals, grabbers, pick-pockets, unreliable persons, in a word, the scum of the earth.
Later the President called the four judges “wajinga” in Kiswahili meaning idiots, fools, and for judges in the highest court, those words only breed dissent and disrespect.
The President then publicly threatened the judges over their decision. Interestingly, the President has been silent on the decision of the two dissenting judges of the Supreme Court, namely, judges Ojwang and Ndung’u.
The Deputy President followed suit and issued open threats against the same four judges of the Supreme Court, saying that the judges have shown their hand and he urged them to watch out for his. Like the President, he too has been silent on his judgment of the two other judges.
I can only imagine what must be going through the minds of the four judges as a result of these threats: betrayal by the executive arm of state that ought to promote and protect their decisional independence and the independence of the judiciary as a whole.
It cannot be lost on observers that this intimidation is coming from two leaders who took on the might of the International Criminal Court (ICC) and came out with political and legal success.
Senator Kipchumba Murkomen, an officer of the Supreme Court took me by surprise with his threats but I shouldn’t have been. Nobody should ever rationalize the actions of politicians. Senator Murkomen has failed to consider his material interests in the Supreme Court should his political career come to a screeching halt in the near future. Would the Judiciary not be his market where his legal wares would be displayed for sale? What is the Law Society of Kenya going to think of these attacks by one of their own? I would be very surprised if the Law Society of Kenya, after scolding the President and the Deputy for their respective bullying of the Supreme Court, would not consider disciplinary proceedings against the Honourable Senator.
There have been attacks by both sides of the Kenyan elite in other courts, the High Court and the Court of Appeal. Besides the privileged factions building divisions among the people, they have also become masters of false news, propaganda, rumour, and gossip. The so-called rich political grapevine in Kenya has only served to exacerbate these divisions.
How are courts supposed to administer justice if the judicial officers walk in amid these divisions? Even the famous Solomon cannot make use of his “solomonic” wisdom in any of the courts of justice in Kenya. He will be judged through the prisms of these divisions and the rumour mills and the channels of gossip will anticipate his decision – He will be vilified by those who lose and be praised by those who win.
How can we talk of justice when every electoral dispute divides the masses? Sadly, the Kenyan elite and its factions, and its public intellectuals to boot, never reflect on these issues. How they intend to build a nation and fulfil the promise of the Constitution is beyond me.
There is not doubt in my mind that divisions in various state institutions are caused by these factions of the Kenyan elite. The IEBC is perhaps a case study of these divisions.
If the Kenyan elite was really conscious of its interests, it would have solved its succession disputes by building institutions it trusts for their independence. They would have formed political parties that are establishments with sound intellectualism, ideology, and politics – institutions of permanence. The elite are lucky that the acting Registrar of Political Parties has never read the constitution. If she had done, and was committed to breathing life into the constitutional provisions relating to political parties, she would have sent many of them to their political graves.
The factions and their political parties strive for capturing institutions so that they can use them for their own gain. Invariably, these institutions, once captured operate on very unstable terrains that are against national interests.
Again, pardon me for rationalizing the elite factions. If they wanted free, fair, peaceful, credible, and acceptable elections what stops them from sitting down to agree on how to monitor the IEBC? They could have installed cameras at polling stations or hire an independent body to oversee the electoral process.
It is clear the IEBC will now have to be monitored robustly. Demands can be made upon it to be transparent and accountable with faction representatives making sure this happens. Even on the issue of technology, an agreement can be reached on the removal of opaqueness and the monitoring of technology by gurus from Google, Facebook and others to confirm the integrity of the process.
Each faction can monitor the operations of IEBC without micro-managing it or dividing the staff and the commissioners. It seems to me that this sensible way of sorting out issues is not on the agenda as the chaos is welcomed with open arms.
In Kenyan elections, political disputes in court are the continuation of politics in other forums where political deaths can be avoided by making sure someone or an institution is blamed for the loss.
If the elite, whose hands this country lies in truly wanted to uphold the constitution they would support the CJ and DCJ who are a more popular representation as judicial officers are recruited by the Judicial Service Commission (JSC) after robust public participation.
The executive is represented in the JSC (by two commissioners, the Attorney General, and the Chair of the Kenya Public Commission) besides the President personally having the right to comment on the suitability of the candidates, by filing reports if he chooses to, for consideration by the JSC.
The nominations the JSC gives to the President go to the National Assembly for vetting, first by a parliamentary committee, and then by the National Assembly. Which politician or faction of the elite can command such an endorsement?
The approval by National Assembly of both nominations captures the will of all Kenyans represented by the various political parties. It is clear that this “tyranny of numbers” in favour of these two judicial officers has never occurred to the factions. Indeed, other judges while skipping the vetting of National Assembly, are also vetted by the broad public. I have always found the question “who elected these judges?” unthinkingly bizarre. They are elected by you the “people’s representatives!”
Let me conclude by answering my own question “When will the Kenyan elite ever grow up?” Looking at the current state of affairs, it looks highly unlikely!
This article was first published in the Star on 16-9-2017