On 1 September 2017, Kenya’s Supreme Court declared the August 8 presidential elections invalid and ordered a new vote within 60 days. The judges found that the Independent Electoral and Boundaries Commission (IEBC) did not conduct the electoral process in a way that was consistent with the law, and that several irregularities and illegalities had occurred. The court received much praise for its courage and impartiality, not only in Kenya but throughout Africa and the world. The court’s decision raises interesting questions about the role of the judiciary in democratic consolidation and political change.
To unpack these and related questions, Perspectives spoke to Yash Ghai, one of Kenya’s leading constitutional law experts.
Perspectives: The fact that the Kenyan Supreme Court annulled the re-election of President Uhuru Kenyatta sent shockwaves around the world. Has the Kenyan judiciary always been so bold in its approach?
Ghai: No, not at all. The status of the judiciary diminished greatly during the regimes of Jomo Kenyatta and Daniel arap Moi. Its independence was effectively removed, with the government giving instructions to judges, particularly in political matters. In cases between private parties, decisions were often made on the basis of the highest bribe paid to judges. The judiciary ceased to be agents of justice.
What turned the situation around?
The drafting and adoption of a new constitution in 2010 played a big role. Its drafters aimed for a legal framework which would vest sovereignty in the people, promote their role in the making of policies and laws, protect their political and social rights, and ensure justice in the community. For these purposes, it sought to remove bribery and other forms of corruption in state and society. The drafters realised that unless the judiciary was fundamentally reformed the Constitution, however perfect to meet Kenya’s conditions, would be subverted.
They invited a number of distinguished judges from Commonwealth countries to advise them on the appointment and structure of the judiciary. Horrified by the conduct of Kenyan judges, the panel advised the vetting of existing judges for competence and integrity and that future appointments be made by an independent constitutional commission. Both these recommendations were implemented, which in turn attracted competent and honest judges to the judiciary and got rid of several corrupt judges.
What is the new constitutional role of the judiciary?
The 2010 Constitution represents a radical departure from the earlier constitutions. It is written to serve the people; it puts serious restrictions on the powers of the government and the legislature and strictly prescribes the powers of the state and how they should be exercised. But it is to the judiciary that the drafters looked for the safeguarding of the Constitution in the last resort, and on whom it placed the highest responsibility. The Constitution strengthens the independence of the judiciary through a more representative and independent judicial service commission, which alone can appoint and dismiss judges. The judiciary now also enjoys secure financial resources.
According to Article 21 (3), the judiciary, as other state organs, has the duty to “address the needs of the vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities”. Courts have to develop the law where the law does not reflect the protection of a right.
The Constitution sets other guidelines for courts in the exercise of their authority. These include that “justice shall be done to all, irrespective of status”. The administration of justice must be directed to the promotion of the purposes and principles of the Constitution. Article 47 gives the judiciary a specific role in reviewing the administrative law and practice of state authorities. The rules of interpretation – which bind all state and private parties, not merely the courts – require that the Constitution should be interpreted to promote its purposes, values and principles; advance the rule of law and human rights and fundamental freedoms; permit the development of the law; and contribute to good government.
The Supreme Court and the constitution division of the high court have done much to clarify the constitutional position on controversial issues and thus provided very useful guidance on the interpretation of the Constitution, emphasising its radical and transformative character.
How easy was it to restore public confidence in the judiciary post-2010?
The bad reputation of the judiciary before 2010 has not been entirely overcome, but some corrupt judges have been removed and some excellent ones appointed.
The judiciary has easily become the most favoured and trusted institution since the new Constitution was enacted, especially with the appointment of Dr Willy Mutunga as the chief justice and his policy of reform. In one sense, it is the strongest, most powerful agent of the state: it is the ultimate interpreter and safeguard of the Constitution. On the other hand, it is unable on its own to enforce its judgments and instructions, or determine its resources. This dilemma defines the judiciary and puts a high premium on the wisdom and integrity of judges.
In many ways, the judiciary is well qualified for the protection of the Constitution. Its members normally have extensive knowledge of the law. They are usually appointed through an open process from a strong group of applicants by an independent commission. Once appointed, they have secure tenure of office and can be dismissed only after a public hearing and for serious misdemeanour. The process, and the reasons, by which they decide cases are transparent and their decisions can be questioned in a higher court.
At the same time, the long delays in court hearings and even longer delays in delivering its judgments have cost the judiciary considerable public sympathy. Perhaps in recognition of this, the Constitution encourages people to settle their disputes in other ways, like other forms of dispute resolution such as mediation and arbitration.
Nevertheless, several members of the legal profession and the public have come out in defence of the judiciary against recent attacks from members of government and parliamentarians, including the president, after it has held various government laws and practices unconstitutional.
How does the judiciary relate to the other two arms of government?
Despite the good efforts of the judiciary, the legislature and the executive have intensified their disregard of the spirit and letter of the Constitution. The president has gone well beyond his authority when he has tried to veto the appointment of judges, disregarding the Constitution, which gives him only a formal role in the appointment and dismissal of judges. The government has often ignored court decisions – sometimes even encouraged by the attorney general, the chief government lawyer – making the task of the judiciary even more difficult. President Uhuru Kenyatta has, from the beginning of his first term, shown no regard for the constitutional status and role of the judiciary.
Despite this, the judiciary has made considerable progress, reaching out to the people in areas where it was impossible to reach a court, steadfastly protecting the constitutional rights of the people, and insisting that the legislatures and the executive must follow the law. Both the judiciary’s respect of the Constitution and the disregard of it by the president have been highlighted by the presidential elections in August and October 2017.
The Supreme Court’s 2017 ruling was not the first time the judiciary got involved with electoral issues.
That’s correct. Elections in Kenya are not about policies. Instead, they are about the capture and control of the state in order to illegally amass as much money and property as possible. Not surprisingly, electoral laws have been violated ever since independence. For this reason, the losers of elections almost always challenge the credentials or conduct of the winners, giving the judiciary hundreds of cases. This practice has intensified under the new Constitution, both because there are more seats in the national legislature but also because there is now a second chamber, the senate, as well as elections for various purposes in the 47 counties.
The first electoral issue for the Supreme Court – where challenges in respect of presidential elections begin and end – was in 2013 when Raila Odinga challenged his defeat against Uhuru Kenyatta at the hands of the electoral commission. The decision by the Supreme Court to uphold the Kenyatta’s election victory was very controversial on legal grounds, and objected to by Odinga, but he did eventually accept it.
Kenyatta and Odinga were again leading candidates in August 2017, where Kenyatta was again declared the winner with 54 percent of votes. Odinga, who had received 45 percent, challenged the decision again. This time the Supreme Court declared the elections void on technical grounds – basically that the conduct of the election departed to such an extent from the principles of the Constitution and the law that it could not be allowed to stand – and ordered another election in October. While the 2013 decision did the court considerable harm, in 2017 it was able to redeem itself to some extent.
At first, in a prepared speech, Kenyatta took the court decision well, but he soon began to denounce, even threaten, the court. Odinga’s position was that certain improvements in the electoral system must be made before the elections, and when these were not forthcoming – or he thought they were not – he withdrew his candidacy. A challenge to the holding of the October election could not be heard because the Supreme Court could not muster a quorum – for reasons that are still obscure, and troubling. A challenge after the event was unsuccessful.
Odinga maintained that he had already won the previous round of elections, and his party produced figures of which the provenance and authenticity remain unclear.
How was the judiciary affected by the elections?
Kenyatta eventually won 98 percent of the vote in October, after Odinga opted out of the process. As before, the response among the people was largely ethnic. The reaction to Odinga’s defeat was strong and picked up momentum as Odinga declared that he had already won the August elections, rendering the October elections unnecessary. He declared his intention to be sworn in as “president of the people”, not the state, a position which gathered huge public support and created a major national crisis. This rather put the judiciary a little bit in the background while “pure” politics – principally consisting of insults and not infrequent threats – occupied the central place at least until Odinga did take the “oath” on 30 January 2018.
What was government’s reaction to the swearing-in of the “people’s president”?
The swearing itself was peaceful, despite government attempts to prevent Odinga and his supporters – many thousands it seemed – from accessing the swearing-in venue, Uhuru Park. The high turnout shocked the president and his government as they realised how little influence they would have in areas which support Odinga. Their reaction therefore was very strong, using the police to arrest several politicians.
The government blocked off the TV programmes of about five companies for five days. Interior Cabinet Minister Fred Mitiang’i “explained” that the media were complicit in an alleged plot by the opposition to commit a massacre during the swearing-in of the leader of the opposition, Raila Odinga. The minister also alleged that the opposition rally on 30 January was intended to “subvert or overthrow the legally constituted government” without an iota of evidence. The programmes were restored only after huge protests from the public and the international community. The high court also ordered the lifting of the ban. Kenyatta’s family’s TV station was unaffected, but naturally did not really report the event.
There has been a massive defiance of the judiciary by the government and the police. The inspector general of police – who takes his orders from the president, illegally – has refused to appear before the court, despite court orders to do so. The TV coverage was not broadcast promptly as the court order required.
Did individual opposition politicians remain untouched?
A leading figure in the opposition, Miguna Miguna, was arrested and hidden in a prison despite the law requiring that those detained should be able to see family and lawyers. The court, after orders that he be released were ignored, ordered the inspector general and the interior minister to bring him before the court. Neither of them appeared. Instead, Miguna, who suffers from various ailments including asthma, was produced in a court well away from Nairobi and then deported to Canada, where he had lived for some years until his return to Kenya and where he has citizenship. The courts have declared the illegality of the deportation, but with hardly any effect.
The government has also confiscated the passports of other leaders of the opposition. This is in violation of the Constitution, which recognises the right of every citizen to necessary documents. To the best of my information, no one I know is planning to run out of the country. In fact, they have become quite popular as the general resentment against the government increases.
You mentioned the role of the police earlier.
The Kenyan police have always been brutal, from colonial times onwards. But in the last few years under Kenyatta, their conduct has become outrageous. Numerous teenagers and young male adults have been killed for no reason whatsoever – certainly none that justifies killing without trial. These murders are well documented but nothing is done about it. The Constitution aims to protect the police from undue government influence and provides for an independent commission to review the conduct of the police. However, when Kenyatta became president, he ensured the passage of a law to assume control over the police. He has effectively exercised that control. In all these acts, the president and his colleagues have deliberately ignored the courts. This seems also an essential element of their strategy: to demean the status and authority of the judiciary.
What conclusions about the judiciary’s ability to effect lasting change do you draw from these episodes?
The electoral episodes have highlighted two aspects of the judiciary. The first is its importance for the protection of the Constitution and laws. The judiciary is the final authority for the interpretation of the Constitution. The jurisdiction and rulings of the courts are closely connected to the rule of law, which is respected in both Kenya and the West. The stands taken and orders given by the judiciary have no doubt increased the people’s understanding of the constitutional order and respect for the judiciary.
On the other hand, the ease with which the president and his officers have been able to disregard the orders of the courts shows the judiciary’s limitations to enforce its orders. It depends for implementation on the very officers/ institutions that it has sanctioned. There is no judiciary police in Kenya which can carry out the orders of the courts. The relatively passive attitude of the people to the government regarding its disregard of judicial orders shows that they have not fully imbibed the centrality of the judiciary to good governance and the Constitution, which, in the abstract, they seem to cherish. The elections episode also shows that ethnicity is more important to them than the rule of law.
Some key elements of the justice system, like the attorney general, have given the judiciary very little support in the episodes discussed here and in other instances preferred to side with the government, despite its contempt for justice.
 Jomo Kenyatta was Kenya’s first president after independence, serving from 12 December 1964 until his death on 22 August 1978. Daniel arap Moi succeeded Kenyatta and held the office until 30 December 2002.