The judiciary and the long struggle to defend Kenya’s constitution | Kenya

The fierce conflict between Kenyan President Uhuru Kenyatta and the country’s judicial department over the supremacy of the constitution broke out again. This time, the president tried to usurp the power of the Judicial Service Committee (JSC) to select judges and judicial officials for the national courts, which triggered the battle.

For two years, Kenyatta claimed that the intelligence agency conducted a secret and adverse investigation on them and refused to formally appoint 41 people selected by JSC to fill various positions including the Court of Appeal. This violates the Constitution, which gives him no discretion in this matter, and many court rulings confirm this. This week, he partially complied, appointing 34 of them, but still stubbornly continued to stop the other 6 (one of whom died during this period).

His position was severely condemned by civil society groups, parliamentarians and even the former Chief Justice Willie Mutonga. He wrote a stern letter accusing Kenyatta of “wearing a wreath in the trivialities of executive power” and Betrayed his official oath. But this is not the first time Kenyatta has clashed with the judiciary, especially since the constitution was promulgated 11 years ago, the judiciary has become more confident in requiring the political class to comply with the law.

Judicial independence has been a myth for most of Kenya’s history. In the colonial era, judges served the royal family and lacked independence. As Mutongga observed in 2013, they are essentially “a civil servant who is subject to a colonial government and rarely has the courage to stand up”.

Although the Constitution protected judges in 1963 and deliberately separated them from executive power, it proved to be unable to match the deep-rooted habit of judicial submission to administrative tyranny that was bred and nurtured under colonialism.

For the next 47 years, with a few notable exceptions, the courts not only remained silent, but also seemed to be helpful when the presidents and their cronies destroyed all constitutional guarantees and restrictions. The judiciary is just a department of the Attorney-General’s Office, which is severely underfunded and understaffed.

In a prominent case in 1989, a judge declared the entire bill of rights invalid and unenforceable, essentially depriving all Kenyans of constitutional protection because the Chief Justice failed to establish procedural rules for the execution of the High Court.

The nadir of the judiciary may have occurred during the controversy in the 2007 presidential election, when the opposition took the case to the streets due to lack of confidence in its independence, resulting in the death of more than 1,300 people and the displacement of hundreds. Thousands, the country almost collapsed. After the violence, an independent judiciary became the top priority of reformers, who have been fighting for constitutional and judicial reforms for more than 25 years.

In many ways, the 2010 Constitution is a reset of the constitution promulgated at the time of independence and canceled many destructive amendments imposed by the political class on Kenyans. The failure of the independent constitution was largely because it was imposed by Britain, and the political class that accepted it did not believe it, and after nearly a century of colonial repression, there were few existing institutions to defend it.

In contrast, the 2010 Constitution is the product of decades of local struggles and extensive national consultations, with an army of civil society activists, lawyers, and ordinary Kenyans willing to stand up for it. Most importantly, free from administrative shackles, the judiciary is rapidly growing and establishing its role as an enforcer of constitutional rules.

However, this is not a simple evolutionary process. Some interpretations of the constitution by the judiciary seem to be a step backwards from the previous kowtow to the Kenyan ruler. The 2013 decision basically stated that the Constitution’s restrictions on integrity do not require those accused of crimes against humanity by the International Criminal Court to clear their reputations before running for the country’s highest office, and subsequently maintained the suspicious election and election of President Kenyatta. His deputy, William Ruto, has been widely criticized, causing many Kenyans to worry that the past may repeat itself in the future.

The court also controversially supported the colonial era’s restrictions on sexual diversity, inexplicably equating homosexuality with marriage, and implied that by recognizing the right to marry the opposite sex, the constitution prohibited same-sex relationships to some extent.

However, in general, the judiciary seems to have found some footholds and won a certain level of trust among Kenyans by repeatedly overturning unconstitutional legislation and insisting on making it easier for citizens to spot cheating on the eve of the 2017 elections. the rule of.

There is no doubt that the climax occurred in the cancellation of the presidential election that year, which was unthinkable before. This caused the terrible threat of Kenyatta to “re-examine”. Two months later, after the deputy chief justice was attacked, the Supreme Court was unable to convene a quorum to hear cases that challenged re-elections before causing problems. The revocation is fixed.

Despite “winning” his second term, Kenyatta continued to declare war on the justice and the constitution, and in cooperation with former rival Laila Odinga, launched the “Bridge Building Initiative”-an amendment to A disguised attempt to reverse time, the Constitution began to rebuild an all-powerful administrative agency. The initiative produced a bill and proposed several constitutional reforms.

As in the 1960s, today the legislature has been effectively castrated as an inspection of the executive branch, and the responsibility for blocking the bill falls on the judicial branch. In May, in another historic judgment, the High Court declared the company unconstitutional.

In a ruling retelling the tragic history of how the independent constitution was destroyed using the amendment procedure and how Kenyans had to fight to revoke it, the judges believed that tampering with the basic structure of the constitution can only be done by the Constituent Assembly. To complete the drafting of a new one for all Kenyans.

The ruling once again caused the anger and disappointment of Kenyatta and his assistants, and led to acts of revenge. The two judges who were prevented from being promoted to the Court of Appeal were part of the five judges who made the decision.

In a terrible speech in early June, the president declared that the purpose of human rights and autonomy was to cooperate with the government, and that the independence of the judiciary was a threat to the same constitution that granted independence.

As the judiciary is now ready to hear the government’s appeal against the decision at the end of June, the question remains whether judges will be scared again to obey the wishes of the executive branch, or whether they will muster the courage to continue to defend them. The constitution and their own independence. Kenyans will remain vigilant, hoping for the latter.

The views expressed in this article are those of the author and do not necessarily reflect Al Jazeera’s editorial stance.

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