The impact of the consolidated judgement of Petition No. E282 of 20202
The Kenyan judiciary did it again! A la Robert Frost, yet again, it chose to take the road “less traveled (sic) by, And that has made all the difference.”
The reactions to the unanimous judgement of Kenya’s five judge bench of the Constitutional and Human Rights division of the High Court to petitions seeking intervention in the Building Bridges Initiative (BBI) delivered on 13 May 2021 have, expectedly been mixed.
There are those who have accepted it with reverence; those that have rejected it with abhorrence; while there are those who received it with ambivalence. Be that as it may, the fact is that the judgement registered with a loud bang, in Kenya and abroad. This is because it was unique both in its jurisprudential and political scopes. This piece dwells on the latter.
Besides establishing that the Constitution of Kenya, 2010 (CoK, 2010) bears the hallmarks of an entrenched basic structure, the jurisprudential novelty, the judgment pulled the breaks of the proverbial BBI train. By invoking the popular BBI campaigns’ parlance and slogans, it can be said that the ‘judicial quintet’ comprising of Justices Joel Ngugi (presiding), Teresia Matheka, George Odunga, Chacha Mwita, and Jairus Ngaah, in perfect chorus, out sang the BBI promoters’ self styled rendition of constitutional review, popularly dubbed as the ‘BBI reggae’. The judgement conjured both real time and long term political impacts.
Through this pronouncement, the court went on a head-on collision with the powers that be; the contemporary political power consortium and console – the president, Ndugu Uhuru Kenyatta, and his partner in the BBI adventure, the head of Kenya’s opposition – Ndugu Raila Odinga. Within current public discourse, going contra-BBI is akin to setting ablaze Kenya’s political pantheon. This is one reason why the judgement has amongst other things, been termed “brave”!
In Kenya’s political history, the judiciary and the legislature were mere accessories of the presidency. It still remains taboo for these arms of state to be at variance with or counter the whims of the presidency. Even with enactment of the transformative CoK 2010, Kenya’s state institutions and operatives, suffer from political hysteresis. The old thinking, habits and deferential interface of the pre-2010 ancien régime, where the executive tyrannised the state, haunt statehood and statecraft. It therefore remains an abomination to go against the political wishes, plans, and machinations of the president.
To paraphrase the Bible, in Kenya, the fear of the president is the beginning of wisdom. That is why, this judgement was unexpected to many. Not because the petitions lacked merit, were poorly argued and considered, but because it is well known that it is only in mythological dreams where mortals wrestle with political gods and get out unscathed. It is for this reason that some of those who are not happy with this daring decision, have gone on to maliciously attack the five judges. “How dare you?” they ask! Ruling against the president is like ruling against the political rulebook. After all, the ruler is always ‘straight’ and cannot be out ruled!
This pronouncement in addition to that of the Supreme Court of Kenya’s (SCORK) annulment of the 2017 presidential election results, makes a difference and contributes to the demystification of the national executive and the presidency as a political institution. Within the letter and spirit of the CoK, 2010, the national executive is an arm of the state equivalent to the others. It bears no hierarchical or supervisory powers over the legislature and the legislature, as was the case.
Those attacking the judges should remember that judicial contests invariably deliver winners and losers. Whichever alley of the outcome one finds herself, the custom remains – agree/disagree but accept. Accountability through praise and criticism of judicial outcomes and the reasons thereof is encouraged. Along the judicial avenue, appeals can be lodged and where cogent evidence exists, that a judicial officer was compromised through extra-legal ways, say by way of a bribe, disciplinary action through the Judicial Service Commission (JSC) can be initiated.
In other quarters, political, social, and academic debates are also encouraged. They help ventilate, facilitate understanding, and in some ways expose the shortcomings of a decision. That is why retired American Supreme Court jurist Sandra Day O’Connor once observed that, “The freedom to criticize judges and other public officials is necessary to a vibrant democracy. The problem comes when healthy criticism is replaced with more destructive intimidation and sanctions.”
As the retired Justice stated, these kinds of attacks are deliberately designed to intimidate and sanction. The current offensive comes within the ‘revisiting’ discourse which the judiciary has been experiencing since the Supreme Court of Kenya’s (SCORK) annulment of the 2017 presidential elections results. President Uhuru Kenyatta, aggrieved by the decision, publicly promised to “revisit” the event. Ever since, the institution and its judges have been publicly demeaned and personally attacked in all manner of ways ( sabotage through budget cuts, diminished capacity through refusal by the president to constitutionally appoint duly hired judges, and mud slinging).
It is no wonder that the judgement has been termed brave or courageous, considering the prevailing ecosystem. It took guts for this bench to return this pronouncement. The current immediate attack is therefore a doubling down meant to intimidate those judicial officers who like these five judges, will dare to derive courage from retired Justice Maraga’s led SCORK’s 2017 decision. The walls of the corridors of power, seem to be emblazoned with the following words from Billy Graham – “Courage is contagious. When a brave man takes a stand, the spines of others are often stiffened.” The on going mud slinging intentionally serves two intentions – to punish the five judges and to warn the rest.
Again, this is uncalled for. It portrays an immature and parochial appreciation of the nature of the state, its trinity and the role of the judiciary thereof. The state is a political creature. Clothed in and protected by legal fabrics, the state is the political framework within which the social, cultural and economic intentions of those who will and subscribe to it, are realised. The legislature echoes and mirrors the will, the execute animates it, while the judiciary affirms and confirms it whenever there is doubt. The judiciary is therefore a political player, albeit not a competitor but an umpire. Without the judiciary the state and its business, politics, are incomplete. If the judiciary is a creature of the constitution and the constitution a creature of politics, it logically flows that the judiciary is a creature of politics. Politics must however be understood beyond the weekend rallies brand of politicking that Kenyans are accustomed to.
Politics encompass the entire decision-making framework of a state. With the narrow understanding of politics, there are those who think that the judiciary should restrain and avoid getting into political tussles, even when invoked. It is like a football referee refusing to intervene when players of opposing teams cannot decide whether a tackle is kosher or not. In constitutional democracies like Kenya, where invited, the judiciary plays the adjudicatory role in the political economy.
The constitution sets out the rules of the game of politics; how Kenyans interface amongst themselves and with the institutions that they have set up to serve their interests. The judiciary ensures that these rules are followed as per the rulebook. The institution should therefore not be vilified, and for that matter in the vulgar and crude manner currently seen, for executing its constitutionally mandated role. After all and for good measure, through our adversarial system, the judiciary cannot gate crush. It only attends when invited. This pronouncement entrenches the judiciary as the constitutionally ordained political umpire of Kenyan politics. Borrowing from Kantian moral philosophy, courts enforce the “categorical imperative” of political morals and ethics, couched in the constitution and other laws.
This judgement, similar to that of the SCORK’s in 2017, makes a difference because it dramatically changed the script of Kenya’s political drama. By ruling against the powers that be in such fashion, the judiciary has once again reminded all that Kenya’s stage play is a constitutionally scripted dialogue and not a presidential monologue, where the executive has its way, even when it goes astray. The political optics and acoustics of this judgement, even if eventually overturned through appeal, shall remain ingrained in Kenya’s constitution building and history. It has given Kenyans confidence that where and when invited, the judiciary can play its part in ensuring that the game of politics is kept clean and fair.
The decision shall for ever inspire Kenyans that Okoth Ogendo’s paradox of “constitutions without constitutionalism”, like a Bible or Koran sans holiness, is surmountable if citizens remain vigilant and state officers, like the five judges, draw courage from transformative, facilitative and liberating authority such as is the CoK, 2010. The petitioners and the judges have shown the importance of agency and activity. They have animated what Charles de Gaulle said – “History does not teach fatalism. These are the moments when the will of a handful free men (and women) breaks through determinism and opens up new roads. People get the history they deserve.”