Kenyan Judges Becoming More Assertive

On Friday, May 20, 2011 campaigns for Kenya’s Kamukunji region’s by-election were in top gear.

It was just two days to the election, and the Interim Independent Electoral Commission had completed its preparations. The candidates were doing their final campaigning.

An expectant nation awaited the outcome of another bruising battle between the two coalition parties PNU and ODM.

Then the shocker came that afternoon: the elections were postponed. Indefinitely.

High Court Judge Jeanne Gacheche had ruled in favour of Mr Paul Mwangi of the National Vision Party, who wanted the elections stopped on the grounds that he had been denied the right by the IIEC to present his nomination papers.

A palpable sense of frustration and anger swept through the nation.

Predictably, PNU and ODM started to blame each other of trying to influence Lady Justice Gacheche’s decision to gain advantage in the polls. The allegations were unsubstantiated.

“The nomination process was flawed, and the court must discharge its constitutional mandate intended to promote the rule of law,” Lady Justice Gacheche had ruled.

But the manner in which the political class reacted to the ruling betrayed a feeling, entrenched by years of practice, that the Judiciary was theirs for manipulation.

Forgotten were the prominent signs that indicated that the Judiciary had entered a new phase of independence and assertiveness.

“The Executive and the political class in general are lagging far behind in accepting the phenomenal changes that are taking place in the Judiciary,” said former Kenyan ambassador Prof Maria Nzomo.

After having the Judiciary under its thumb for decades, the Executive seems to have suddenly woken up to a body that no longer takes instructions.

According to the veteran diplomat, the Executive seems to be utterly at a loss on how to handle it.

This state of affairs was highlighted in the government’s reaction to Justice Nicholas Ombija’s controversial decision ordering the arrest of Sudan’s President Hassan Omar al-Bashir if he ever set foot in Kenya.

According to lawyer Paul Mwangi, the government’s furious reaction to the decision betrayed its thinking: that the courts have no spine to make such a ruling or that it could safely ignore it without much consequence.

It is a perception that has been alluded to in statements by senior government officials.

Foreign Affairs minister Moses Wetang’ula termed the ruling “a judgement in error” and even vowed to defy the court order by inviting Mr Bashir to the country.

“In its anger, the government seems to have conveniently forgotten the fact that it was wrong to have invited President Bashir since it violated both the Kenyan law and international treaties it has signed,” said Mr Mwangi.

After suffering years of manipulation and subversion by the political class, the Judiciary seems to have finally found its footing.

Justice Ombija’s decision was not an exception but just one in a growing number of cases in recent times that have left the Executive red-faced.

The diplomatic spat it raised aside, the ruling seems to reinforce the perception that the Judiciary has finally severed the umbilical cord that connected it to the Executive and which, for years, hampered its operations.

Judge Ombija’s ruling follows those of some of his other colleagues who, in recent times, have made what would be considered in Kenya precedent-setting judgments that would not have been possible, say, 10 years ago, under the Kanu administration.

Other judges who have made notable rulings that have rubbed the Executive the wrong way include High Court judge Mohammed Warsame and Daniel Musinga and Mohammed Ibrahim of the Supreme Court.

Under the old constitution, the Judiciary was more of an extension of the Executive with a mere pretence of independence.

The cord that linked the two was the law that gave the presidency unfettered powers to make appointments to the Judiciary.

The President had powers to unilaterally appoint judges to the High Court and the Court of Appeal.

In addition, he appointed the chief justice, the public prosecutor and the attorney-general at his discretion.

This made it impossible for the Judiciary to be impartial. With time the Judiciary came to be perceived by the public as a lame duck at the mercy of the political elite rather than the just and impartial arbiter it professed to be.

Today, it is not business as usual for the Judiciary under the new constitutional order. The Executive has no role in the appointment of judges.

The job now rests with the Judicial Service Commission.

“It is real independence,” Mr Mwangi said. “Finally, the Judiciary can breathe easy and execute its mandate without undue influence.”

To complete the independence from the Executive, the Judiciary now draws its operating funds from the Consolidated Fund rather than from the Exchequer, a move that allows it to determine salaries for its employees.

Operated hand-in-glove

Reflecting on the changes that have occurred within the Judiciary in recent times, Mr Mwangi shared some insights into how the Judiciary operated hand-in-glove with the Executive in former years.

“Whenever there was a judgement that was likely to embarrass it, the presiding judge would first inform the Attorney-General who would then inform the President about it. There was no room for the surprise element that there is today,” he said.

According to lawyer Paul Muite, the current rulings, which have left the Executive with a bloodied nose, ought to be understood as a reaction to years of being muzzled.

“It is the natural reaction of anyone who has been denied freedom of expression for long,” he said.

But some observers caution that there is inherent danger in the manner in which the Judiciary is expressing its newfound freedom.

“There is a real danger of judicial activism,” said a retired judge, who requested not to be named since he is still doing some work for the Judiciary. “The law has to be applied in accordance with the prevailing circumstances. However, it seems judges are making rulings that would simply appeal to the masses without taking into consideration their current and future implications.”

But coming from a background where judicial decisions are routinely disregarded by the political class, Mr Mwangi says judicial activism is necessary to instill the rule of law.

“It is important that people know that they cannot break the law and get away with it, even if it is government,” he said.

The current Judiciary is considered the most liberal in Africa, perhaps epitomised by the current Chief Justice Willy Mutunga and his deputy Nancy Baraza.

The two, like most of the judges in the two courts, were picked for their “reform credentials,” a phrase that has become synonymous with opposition to the former Kanu regime.

Some of the current judges who cut their teeth in the reform movement include Smokin Wanjala, Mohammed Ibrahim and Njoki Ndung’u of the Supreme Court and Mumbi Ngugi of the High Court.

“Having opposed the former regime, it seems to me, was a silent requirement in being appointed to these positions. It seems everyone is now trying to fit into this criterion in preparation for future promotions,” cautioned the retired judge.

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