WHEN THE RIGHT COURT MAKES A WRONG DECISION: AN INQUIRY INTO KENYA’S SUPREME COURT DECISION TO BAR LAWYER AHMEDNASIR ABDULLAHI FROM APPEARING BEFORE IT

By Javas Bigambo

No productive debate on this subject can escape reductionism. Kenyan legal space is brimming with liberal and rightfully reductionist debates following communication from the Supreme Court of Kenya, conveying the dismayingly unprecedented dastardly decision to deny audience to Senior Counsel Ahmednasir Abdullahi.

Law by its nature, constitutes rational sets of rules and measures handed down through regulated administrative procedures to meet the desirable ends of justice. Yet, in the convoluted pursuit of justice, courts have at times walked the slippery path or err, evidenced through mortal limitations manifested in numerous forms, whether compromise, emotions, graft or at times deficiency of jurisprudential philosophies.

From the pride of place that it occupies, the Supreme Court is a giant screen upon which jurisprudence and justice are projected. So, any decision from that court is consequential.

That is why there is serious need to critique and problematise the resolve of the Supreme Court. The axiological load of Kenya’s Supreme Court decision to bar Ahmednasir Abdulahi(SC) unavoidably invited liberal inquiry as to whether the apex court made the wrong decision, contravening the very tenets of justice for which the same court is supposed to stand for.

SC Ahmednasir Abdullahi: Barred

The Registrar of the Supreme Court Hon. L. M. Wachira conveyed the instructions of the entire seven-bench court indicating;

“I have been instructed by the Full Seven-Judge Bench of the Supreme Court of Kenya to address you as hereunder:

Over the years, you have relentlessly and unabashedly conducted a campaign in the broadcast, print and social media aimed at scandalizing, ridiculing and outrightly denigrating this Court. Through social media posts, media interviews and write-ups, you have accused the Court either in its constitutive persona, or individual membership, of acts of corruption, incompetence and outright bribery. This, you have done with reckless abandon, paying scant regard to the reputations of those who tirelessly serve on the Court in accordance with their Oath of Office.”

From the above, the consciously unrestrained collective bench unanimously arrived at the resolve to deny the Senior Counsel from appearing before it henceforward, adjudged on the basis of his haughty personal social media statements amounting to attacks against the institution of the Supreme Court and the individual judges, as asseverated, bringing them to untold disrepute. Ahmed Nassir and the Supreme Court have had a byzantine relationship, with diminishing regard for the other.

The Supreme Court of Kenya currently comprises Lady Justice Martha Koome – Chief Justice and President of the Supreme Court; Lady Justice Philomena Mwilu – Deputy Chief Justice and Vice President of the Supreme Court; Justice Mohamed Khadhar Ibrahim; Justice Dr. Smokin Wanjala; Lady Justice Njoki Susanna Ndung’u; Justice Isaac Lenaola and Justice William Ouko.

Current Justices of the Supreme Court

The court resolved to take an administrative action against the Senior Counsel over what it considers as a long-term attacks on its conduct and frame of integrity, evidenced through a collection of social media posts and various pronouncements he made while appearing on multifarious media interviews.

While the court has not addressed itself to the allegations of corruption and incompetence raised by Senior Counsel Ahmednasir Abdullahi, it has elected to deal with him on the basis of his opinion and speech.

Was the Supreme Court’s decision a fair administrative action? Is the decision problematic? To arrive at a fitting answer, the ground of epistemic discretion of constitutional law has to be ploughed, which I hereby do.

Firstly, there was no trial of SC Ahmednasir Abdullahi, and he had no representation at the time the entire bench was arriving at its decision.  On Suo moto basis, the apex court resolved to indict Mr. Ahmednasir Abdulahion grounds of violation of professional ethics and wanton denigration of the court, and gave him no room to defend himself whether personally or through counsel of his choice.

The Constitution of Kenya in Article 50(1) of the Constitution makes provision for fair hearing, which itself yields room for dispassionate trial. The Article is trite safeguard to the effect that every person of interest to the court of law, has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body, whether such person is a citizen or not.

Further, Article 50 (2) states that “Every accused person has the right to a fair trial, which includes the right- (g) to choose, and be represented by, an advocate, and to be informed of this right promptly;” These cardinal rights were outrightly denied to Ahmed Nassir.

It is helpful to note too that Article 47 (1) of the Constitution of Kenya provides that “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.” These constitutional edicts in the country’s supreme source of law are not amenable to a court’s liberal choice for application or to appreciate.

What is more interesting is that the court barred lawyer Ahmednasir, his law firm and any associate of the firm. None of the associates denigrated the courts through the social media posts referenced by the court, and none of them made unsubstantiated allegations against the court through media.

The ruling held that “it is the decision of this Court, that henceforth and from the date of this Communication, you shall have no audience before the Court, either by yourself, through an employee of your law firm, or any other person holding brief for you, or acting pursuant to your instructions. Much as this decision is bound to affect those who may have instructed you to represent them before the Court, it is untenable that you would seek justice in the very institution and before the very Judges, whose reputation and integrity you never tire in assaulting.”

The court’s vindictive punishment of Mr. Abdullahi has been inequitably extended to the unnatural person that his law firm is, and all associates thereto, including innocent clients that may have instructed his firm. Why would the court serve them ‘justice’ that is not due to them? What is the basis of the undeserving punishment of those who have not offended or held the court in contempt?

Clients of Ahmednasir Abdullahi LLP will suffer the sledge hammer ruling of the court in the circumstances. The necessities of justices have long manacled the chambers of justice to the intrinsic strands of equity that an advocate’s mistakes or limitations ought not be visited upon a client. If Mr. Abdullahi was an open sore to the Supreme Court, his associates or clients were not.

The Supreme Court Act Section 28 (6) provides that “The court may make an order denying audience to the contemnor for any period, as the court may deem fit, but not exceeding eighteen months”. Sadly, the order of the court as relayed by the Registrar of the Supreme Court condemns Mr. Abdullahi eternally, because it has not capped the time during which the order shall subsist.

Section 25 of the Supreme Court Act (2011) provides that “A judgement, decree or order of the Supreme Court may be enforced by the High Court as if it has been given by the High Court. This makes the order barring Mr. Abdullahi and his Associates has very far-reaching effects, and forestalls the competence of his firm’s engagement at the apex court.

The decision of the Supreme Court is extreme and unwarranted. The aggrieved judges could have filed complaints against Mr. Adbullahi to the Disciplinary Tribunal in terms of Section 60 of the Advocates Act (2012). Of Course, Section 56 of the Advocates Act confers upon the Chief Justice unmitigated disciplinary powers upon any advocate on accounts of misconduct or violation of professional ethics.

Can Senior Counsel Ahmednasir Abdullahi seek redress from the High Court given vital constitutional issues related to the order of the Supreme Court? The judiciary is subject to the Constitution and is totally bound by it, and the Supreme Court is a creature of the Constitution.

The Constitution of Kenya 2010’s Article 165 (3) (a)(b) and (d)(ii) provide extensive and unlimited jurisdictional powers to the High Court on constitutional issues, including those canvassed here, touching on whether Abdullahi’s constitutional rights stand violated by the order of the Supreme Court.  This is augmented by the significance of Article 259 (1) of the Constitution which expressly provides that the Constitution shall be interpreted in a manner that “promotes good governance; advances the rule of law, and the human rights and fundamental freedoms of the Bill of Rights; permits development of the law; and contributes to good governance.”

The Senior Counsel could therefore consider examination of the Supreme Court decision under Judicial Review.

He may as well go to the cross-border courts such as the East African Court of Justice, or the International Court of Justice, but such court cannot overturn the decision or order of the Supreme Court of Kenya.

Has the Supreme Court oiled its machine of folly through judicial overreach? Courts are esteemed palaces of justice, and not caves of injustice. The Supreme Court justices need not wear reductionist lenses and place desirable normative neutrality on the guillotine.  I hold the view that the right court has made a wrong decision to bar Senior Counsel Ahmednasir Abdullahi from appearing before it.

Javas Bigambo is a Lawyer and Political Scientist based in Nairobi

Javas Bigambo: Supreme Court was unfair to Ahmednasir Abdillahi

Ideological Stagnation and the Tragedy of Moribund Political Parties in Kenya

By Javas Bigambo (February, 2023)

With the deafening drumbeats of celebration for a democracy in its puberty, Kenya hurtled to the 2022 general election, the seventh cycle since the birth of multiparty democracy in the country with 84 registered political parties.

Regardless of such numerous parties, ideological politics in Kenya have faced structural damage and political parties continue to suffer the caustic burden of founder’s capture. 

When political parties are modelled as arteries for individualistic economic survival, the foundations of ideological standing get destroyed. That is why a political party’s top decision-making organ, the National Executive Committee or Council should be its ideological Ararat, whose flames should never go off.

The internal wrangles and recent coup in Jubilee Party come about as a living example of factions fighting for a party that has no ideological soul.

Neither the dethroned Secretary general Jeremiah Kioni nor the enthroned Acting Secretary General Kanini Kega has spoken about taking whatever standpoints on ideological basis. The former is defending his support for Azimio’s Raila Odinga and Party Leader Uhuru Kenyatta, while the latter is defending the gravitational drift towards Kenya Kwanza Coalition and the need to support President William Ruto’s government. Quintessentially, neither Jubilee “A” nor Jubilee “B” factions have any ideological DNA to which they fear being disinherited.

Political parties exist not just for political organisations, but with the aim of accessing power, governing the polity through social contract, and ameliorating the welfare of the people. These pursuits easily succeed with elaborate ideological grounding. That is why the Constitution contemplates and secures the right for one to “campaign for a cause”, and the Political parties (Amendment) Act through Section 6(2) demands a statement of “ideology” from every political party.

Political parties in Kenya that have elected members through general of by-election, proportionately benefit from Political Party Funding, another sacrifice by tax payers. This is premised on the institutionalisation of political parties through constitutional entrenchment, and the desire to have political parties and public entities, and not private property. 

Government as a compound institution is a public entity, and should therefore be organised and managed by institutionalised public entities in the form of political parties or coalitions, not political parties that are personalised or that retain the form of private property.

On this basis, the public must demand the best and the highest level of decency, ideology and leadership from political parties, predicated on the Political party Funding railroad by the exchequer. Kenyans must not breathlessly survive heavy taxes and still find unfettered pleasure in genuflecting at political party founders and leaders merely for preservation of their serrated egos. 

Based on the happenings in political parties, Kenyans need to invite themselves to national discourse on the implication of political party funding on the character of political party ownership, leadership and character.

Kenyans must be resolved to change the nature and character of political parties. The liberators should not be transformed into hatchet men and gifted destroyers of the very liberties and freedoms they are thought to believe in.

If we must come close to internal party democracy, we must go far from utility of goons as instruments of terror unleashed against those who hold alternative views, or party leaders choreographing in-fighting within parties. Organised disruptions through goons must no longer be the cherished art and science of political management of party affairs, being instrumentalised by ideological midgets within parties.

The golden age of political evil reigned during the subsistence of the strappado of the KANU regime, where the party’s ‘youth wingers’ prized as the party jewels, reigned terror on those who stood against the god-ruler of the party.

If socio-economic development and poverty reduction is the primary interest of political leaders, political parties should be driven by strong ideals, augmented by implementation governance once power is won, with policies based strictly on those party ideologies. Parties should be driven by sound, firm and observable ideological constructs, far from the court poetry and hero-worshiping arena most preferred by party leaders and profiteers of choreographed chaos. 

Radicalised emptiness is the greatest threat to democracy after political dynasties. These two imposters are not likely to go away from Kenya anytime soon, given that the courts have now decreed that education is no longer a necessity and the backbone for holding any elective office in Kenya. The future is bright. Kenya will soon elect Governors and Senators and President who cannot understand budgets, intricate policy issues of effect fathom the concerns of public finance as outlined by the Controller of Budget of the Auditor General through their exhaustive reports. Ideological stagnation or emptiness leads to stagnation or moribund political parties. 

It is sound, relatable and firm ideologies that will fuel growth of political parties, and have the best among its members prepared for party and national leadership. Presently, budding political careers die in the hands of insecure Party Leaders who engineer the downfall of vivacious candidates through stage managed sham party primaries, which are also disgraced by ‘direct nomination’ certificates dished out to ranking bootlickers and ideological debased party financiers under the aegis of the Party leader or Founder.

Codification of direct nomination through the Political parties Nomination Rules through Section 28 of the Elections Act, 2011 was a clever but brazen way of institutionalising highhandedness and constricting the freewill of voters to select their preferred party candidates.

Is it not absurd and laughable that political parties commit the most horrendous acts against fairness, justice and transparency during party primaries, then proceed to demand accurate, verifiable, transparent and spotless management of general elections by the Independent Electoral and Boundaries Commission? Unbridled bunkum.

That is why it leaves a bad taste in the mouth to watch Azimio, through ODM, try to choke and ostracize its 9 elected Members of Parliament, who have recently shown pleasure in hobnobbing with President Ruto at State House Nairobi. Is there an ideological membrane that was raptured such that the renegade MPs crossed the isthmus between ideological extremes? Or is manipulation being disguised as loyalty?

ODM party did not incandescently reprimand them for departing from any ideological quarters, but for merely rejecting Azimio’s election denialism after Mr. Odinga lost election to UDA’s William Ruto. If the alleged disloyalty is what has led to their being banished, would it not be more sensible for political leaders to preach ecumenical loyalty to constitutionalism? The sneering party chorus against the renegade 9’s discomfiture is a dark lining on our golden democracy.

For Raila Odinga presently, his fireball and hankering are much about occupying State House than anything else. His recent pronouncements that “President Ruto should leave State House so that I occupy it” buttresses the argument that after entrenchment of multiparty democracy, which his father Jaramogi Adonijah Oginga Odinga and other frontline democracy stalwarts engineered, ideological politics have taken a snivelling beating, and now most political heads are merely in pursuit of self-actualization and aggrandizement. 

Yes, political parties must in still discipline in their members and elected officials whom the party sponsored through its ticket, but such discipline based on political morality must be weighed on the scales of what amounts to the ‘greater good’ for the country. It should not be good for party leaders and governors only to interact with or meet the President, and a feral sin for other elected members or party officials to meet the President.  Party membership should be based on clear ideological identities.

It is in the nurturing of leadership and tolerance of intellectual firepower that made Democratic Party’s Barack Obama to have historical clash of ideas as they battled for the party’s presidential ticket, and remained respectful friends within the party. Such clashes have been witnessed for decades within the Democratic party and the Republican Party in the USA to the admiration of global eyeballs. 

Political parties should be breeding grounds for ideological and intellectual gymnastics, where the cooking pot of ideas should bring forth steamy ideas to inform unique party manifestos, which when implemented, will spur the country’s socio-economic growth to gain regional and global competitive edge. 

The maximalist interpretation of political rights must be forever stretched to the limits of elasticity with regard to rights domiciled in Article 38 of the Constitution of Kenya 2010, which rights are women and strengthened with the supportive rights and fundamental freedoms among which are association, opinion, conscience and speech, without the repressive tethers of pigeon-holed party leadership interests.

Political parties should encourage cross-party liaisons and cross-coalition liaisons for bi-partisanship on matters of national interest, for co-sponsorship of bills and programmatic linkages on matters of national interest. Crucial policy issues such as national reconciliation, famine crisis, climate change does not need seclusion. That is why party members and elected leaders need not be controlled like slaves aboard the Mayflower. 

Javas Bigambo is a lawyer and political scientist, serving as the Managing Director at Interthoughts Consulting Ltd

Executive Orders as Strings of Power in Presidential Systems: Power Play and Control in Kenya’s Governance

By Javas Bigambo (January 2023)

Upon assumption of office as President of the Republic of Kenya, the person declared as duly elected President saunters into the State House, with constitutional powers bestowed upon the nation’s most prized civilian office of Chief Executive, to superintend the affairs of the executive arm of government with incomparable pride.

In democracies with presidential systems such as one practiced in Kenya, the effusive unction of swearing-in the President epitomizes power and its instruments, for the control of the country including its military muscle. 

While the doctrinal edifice of separation of powers among the three arms of government, namely Executive, Legislature and Judiciary, pontificates interdependence, the Executive arm of government exercised by the presidency or premiership in parliamentary democracies, wields much power, so much so that the other two arms nearly always genuflect at the Executive arm. 

With an express social contract upon him to execute, embraced like a millstone around the neck, the President of the Republic of Kenya is expected to deliver on his mandate, the basis of the people’s trust in him. 

The institutional ecosystem of the Office of the President constitutes legal, social and political powers donated by the Constitution, and derived from the people. These are immense powers.

Power sought must be power used. This must be the unequivocal import of executive authority. The constitutional writ must incessantly run the cause of progress. In presidential systems, the power of the executive arm of government is domiciled int eh President.

That is why Kenya’s President William Ruto deliberately stamps his authority by organising and re-organising the government at will within the gamut of law, to ensure effectiveness in delivery of services to mwananchi. 

Without order, power struggles and overreach would lead to a big bang of chaotic interactions among actors especially Cabinet Secretaries and Principal Secretaries, and would depict the President as a hands-off leader who unwatchfully presides over the affairs of the State. 

Therefore, through a range of actionable directives, the President expresses his will of how the Ministries, State Departments and Agencies must be run, and who to supervise them. That is done through Executive Orders. Executive Orders therefore have the compelling effect of law whose power gushes from executive authority. Such orders do not make law, but they further the law through rational directives with unrivalled clarity.

Executive Orders are therefore the cooking pots of power control, enabled by compelling directives to the executive branch of government to be obeyed in toto, and to ignore them would not only amount to malicious insubordination, but take the recalcitrant officer into the guillotine. 

An Executive order is a far-reaching peremptory edict issued in the authority of a president or a country’s executive command, whose actionable effect is implementation of laws and execution of relevant administrative functions.

An Executive Order is to the President what a weapon is to the soldier. From the folly of America’s former President Harry Tuman in 1952 to Kenya’s former President Uhuru Kenyatta, it remains clear that the President’s Executive Orders must be tethered to particular statutory provisions, or fit within the canopy of Executive Authority, lest hawk-eyed guardians of the Constitution seek judicial reversals through the courts. 

Through the lenses of America’s Supreme Court Decision in Youngstown Sheet & Tube Co. v. Sawyer, an action germinating from Truman’s Executive Order 10340 of 1952 and Law Society of Kenya v Office of the Attorney General & another; Judicial Service Commission (Interested Party) (Constitutional Petition 203 of 2020) [2021] KEHC 454 (KLR), where Kenya’s High Court declared President Uhuru Kenyatta’s Executive Order number 1 of 2020 which sought to restructure the Judiciary and tribunals into state departments as unconstitutional, the margins of law guide Executive Orders.

After a balance of equities in the two cases above, the courts adjudged that the two Presidents, separated by decades of time in office, oceans and histories, acted outside the orbit of their powers.

A President’s Executive Order must constrain itself within the banks of the river of exercisable constitutional and statutory authority, without the spill overs of ultra vires directives.

Maintained within the elastic limits of constitutional and statutory powers, Executive Orders are a field of power play where the President in Kenya creates ministries, determines their functions, and creates State Departments as he wishes within specific ministries. Ministerial power and influence can evidently be seen through functions and responsibilities in Executive Orders.

The rich and complex nature and effect of Executive Orders make them tools not just of control but of power creation as well, as a function of power consciousness.

Under Executive Order number 1 of 2023, beyond deputizing the President in execution of the President’s functions pursuant to Article 147 of the Constitution, Deputy President Rigathi Rigathi chairs the Cabinet committees and oversee implementation of Cabinet decisions across all Ministries and State Departments. 

The DP further chairs the International Development Partnership Coordination; National and County governments Honours Advisory Committee; Nairobi Rivers Commission; chairs the Inter-Government Budget and Economic Council (IBEC) and his office is the focal point for Intergovernmental Relations, powers that are domiciled in his office after folding up of the Ministry of Devolution through Executive Order number 1 of 2022.

On the other hand, Prime Cabinet Secretary Musalia Mudavadi, whose office and position were created through Executive Order number 1 of 2022, now oversees the Government Delivery Services. Additionally, he oversights the implementation of government policies, programs and projects in liaison with the Ministry of Interior and Coordination of National Government; chair and coordinate the national government legislative agenda across all ministries and state departments.

It is instrumental to note that Hon. Musalia Mudavadi was a vital cog in President Ruto’s campaigns, and has benefitted greatly through the creation of a powerful office that now oversees the delivery of the President’s national development agenda. This office did not exist under former President Uhuru Kenyatta.

Through the stroke of the pen by the President’s Executive Order, President William Ruto can rename a ministry or eradicate it altogether. He can move State Departments and Agencies from one Ministry to another, to create a behemoth of a ministry and make a shell of another. For instance, the President created the State Department for Environment and Climate Change to underline the government’s commitment to protecting Kenya from the adverse effects of global warming.

In his first term as President, former President Uhuru Kenyatta created a powerful ministry of Devolution and Planning under the then CS Anne Waiguru, bequeathed with immense powers and budgetary allocation. Presently, such ministry no longer exists.

This demonstrates how powerful the President’s hand is through the Executive Order, which the President can effectively use to preen and primp presidential powers to deliver services to the public.

By enriching the portfolio of the Office of the Deputy President, President William Ruto has increased resources allocation to the DP’s office, and enabled hiring of more technical staff to that office. Compared to how the Office of the DP was under the regime of former President Uhuru Kenyatta, the DP’s office is more powerful now then it was then, thanks to the Executive Order.

Throughout his term as President, analysts and historians will continue to gather around the campfire of analysis to see how effectively President Ruto consolidates power, guides the Executive branch of government, and ensures delivery of services to the people as he committed. 

Javas Bigambo is a Lawyer and Political Scientist, and serves as the Managing Director at Interthoughts Consulting. 

Securing Justice in Criminal Cases: An Assessment of the Interplay between Investigation and Prosecution in Kenya Criminal Justice System

By Javas Bigambo

(This article was first originally published on November 25, 2022 by The Africa Centre For Ideas and Dialogue Program (ACIDP):https://africacentreforideas.org/2022/11/25/securing-justice-in-criminal-cases-an-assessment-of-the-interplay-between-investigation-and-prosecution-in-kenya-criminal-justice-system/

Safe, orderly and progressive society is founded on protecting people’s fundamental rights and freedoms through a dependable criminal justice system. The Constitution of Kenya, 2010 guarantees paramount substantive and procedural rights to persons accused of committing criminal offences. 

The State’s primary obligation is to protect the public from criminality through maintaining law and order as enforced by security agencies. A breakdown of law and order, contrary to provisions of various statutes, invites investigation and prosecution in courts of competent jurisdiction. However, the Constitution places upon the State the duty of ensuring access to justice. It emphasizes that the State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access tojustice. 

One of the rights that form the basis of access to social justice is the right to a fair trial, where the components of prosecution and investigation are critical. Prosecution entails instituting and conducting legal proceedings against an individual in respect of a criminal charge. It plays a paramount role in facilitating fair trial and is essential in upholding the rule of law toward curbing impunity. 

However, for a strong prosecution that secures convictions, the investigations must be credible thus underlining the interdependence of these components in enabling a functional criminal justice system.

Kenya’s criminal justice system comprises diverse players with defined duties and obligations in managing offenders. The key players are the National Police Service that domiciles the Directorate of Criminal Investigations (DCI), the National Intelligence Service (NIS), the Office of Director of Public Prosecutions (ODPP), the Ethics and Anti-Corruption Commission (EACC), Judiciary (the court process), probation aftercare services as well as prison services which undertake rehabilitation, reformation and reintegration after completion of serving sentences.

The National Police Service

In the criminal justice system, the police serve as the point of entry, or initial contact that register the complaint in the Occurrence Book and assign the case to an investigating officer. They also arrest the accused persons or suspects in the case under investigation, for the suspects to assist with vital information.

Directorate of Criminal Investigations

The DCI is established under Part V of the National Police Service Act (CAP 84)Laws of Kenya. It reports to the Inspector–General of Police. It is mandated to undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime. 

Section 35 of the National Police Service Act mandates it to execute the directions given to the Inspector-General by the Director of Public Prosecutions according to Article 157 (4) of the Constitution.

Its investigations, therefore, are a vital engine for the eventual prosecutorial efficiency and capacity. During an investigation, inquiries are made, documents reviewed and witnesses interviewed. Mostly, examinations are conducted and warrants are executed which permit investigators to search places and seize documents and other materials of attendant relevance that would amount to evidence.

Legally, “evidence” denotes how an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved; and, without prejudice to the foregoing generality, includes statements by accused persons, admissions, and observation by the court in its judicial capacity[4].

Success in the investigation requires proper supervision by the DCI so that upon collection of sufficient inculpatory evidence, the file can be forwarded to the DPP to decide to charge, and possibly pressing of charges.

The National Intelligence Service

The NIS is codified as the agency mandated to identify threats against Kenya’s security by collecting and analysing intelligence on the said threats and advising the government accordingly through appropriate intelligence reports, for necessary action. 

Moreover, it provides material support, advice and assistance to State offices, State departments and public entities on matters relating to the security and integrity of the information that is processed, stored or communicated by electronic or similar means.

By way of the numerous functions performed by NIS, the entity provides a paramount supportive element to the work undertaken by the police or DCI in criminal probes.

The functional relationship between these three investigative institutions can be summarised as NIS collects information and intelligence of strategic interest to the country, while DCI collects criminal intelligence information, investigating crime and penetrating crime circles. The Kenya Police Service and Administration Police Service officers perform the basic law and order functions, including securing scenes of crime from being tampered with.

Ethics and Anti-Corruption Commission 

EACC is the lead government agency in the fight against corruption and the promotion of ethical standards, good governance, leadership and integrity in Kenya. Its principal activities are the investigation of corruption and economic crimes, tracing and recovery of corruptly acquired public property, forfeiture of unexplained wealth, corruption prevention, public education and promotion of ethics and integrity.

In its 2021 Annual Report, EACC reported the recovery of stolen assets worth Kshs 6.3 billion in the 2020/21 Financial Year. It had completed investigations and forwarded 104 files on corruption and economic crimes, to the DPP for prosecution. It also carried out 105 random and targeted integrity tests within public institutions including National Police Service (NPS), Kenya Revenue Authority (KRA), Nairobi City County Government, and Higher Education Loans Board (HELB) among others

This could point to efficiency in investigations by the anti-graft body, leading to the successful prosecution of economic crimes in Kenya. 

Office of Director of Public Prosecutions 

The ODPP is the National Prosecuting Authority in Kenya, established under Article 157 of the Constitution of Kenya. It is mandated to exercise State powers of prosecution by instituting and undertaking criminal proceedings against any person before any court, other than a court-martial. 

The Office is not subject to any control, command or direction from any person or authority and operates independently and impartially as stipulated under Article 157 of the Constitution. 

Upon conclusion of investigations, the investigative agencies forward the files to the ODPP with recommendations for prosecution. In exercising the powers conferred by the Constitution, the ODPP in determining whether the evidence meets the threshold for prosecution seeks to ensure due regard to the public interest, the interests of the administration of justice and in preventing and avoiding the abuse of the legal process.

The burden of proof

According to Article 50 (2) (a) of the Constitution, an accused person is presumed to be innocent until the contrary is proven. Section 107 (1) of The Evidence Act Cap 80 of the Laws of Kenya provides thus: “Whoever desires any court to give judgement as to any right or liability dependent on the existence of facts which he asserts, must prove those facts exist.” 

It is for this reason that investigators undertake forensic – use of science or technology – inquiries to establish credible evidence, upon which the DPP will rely to ultimately, decide to prosecute. 

Logically, and from the perspective of prosecutions that have culminated in convictions, bivariate comparisons indicate that cases with crime scene evidence were significantly more likely to lead to arrest, to be referred to the prosecutor, to be charged, and to result in conviction than cases without solid evidence. As such, suffice to state that successful prosecution leading to a conviction in criminal proceedings is a derivative of exhaustive and competent investigations.

Various cases have been competently investigated and successfully prosecuted in the past, pointing to the fact that it is possible to achieve much through synergy and multi-stakeholder cooperation. The successful prosecution and sentencing of Sirisia MP John Waluke and his business partner Grace Wakhungu for fraudulently acquiring Kshs 313 million from a government agency decades ago is evidence of such success. 

The two were jailed to serve for more than 60 years each, with an option of paying fines over Kshs 1 billion each, after they were found culpable of fraudulently obtaining money from the National Cereals and Produce Board (NCPB) for maize which was never supplied.

Institutional conflicts

The perspectives above substantially contribute to a dependable criminal justice system under progressive governance founded on the rule of law. Nonetheless, going by the recent perceived conflict between the immediate former DCI boss George Kinoti, and the DPP Noordin Haji, public trust in the criminal justice system has been strongly tested.

The two institutions handle separate and distinct, yet interdependent constitutional and statutory mandates, whose success increasingly depends on cooperation and support. 

The DCI officers are primarily tasked with undertaking all forms of investigations and gathering all material evidence relevant for prosecution. It is instructive to note that The National Prosecution Policy 2015 addresses the above issue and sets out the relationship on pg. 4 as follows: 

“Prosecutors rely on the work done by investigators for their work. This does not imply that investigators are in any sense ‘clients’ or ‘subjects’ of the prosecutors. The functions of prosecutors and investigators are complimentary in nature. In this regard, consultations and collaboration are inevitable in efficient investigations and prosecutions. In the discharge of their respective mandates, prosecutors should direct and guide investigations, while investigators should seek and receive advice from prosecutors in respect of the law, charges and evidence. The nature of direction and advice will include; appropriate charges that may be preferred, the sufficiency of the evidence, reliability and admissibility of evidence, the applicable law, disclosure of material, as well as issues relating to appeals and revisions.”

The ODPP relies on the cogent investigations and evidentiary value of materials collected to decide to prosecute. If the ODPP establishes that the investigations are not exhaustive and the material evidence cannot sustain a trial, the file at issue is returned to the DCI with reasons for reverting, and suggestions for areas where further investigations are required. In Kuria & 3 Others Vs Attorney General (2002) 2 KLR 69, the court held that: 

“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for an ulterior motive or improper purpose. Before instituting criminal proceedings there must be in existence of material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting criminal prosecution otherwise the prosecution will be malicious and actionable.”

The decision to prosecute or to discontinue a prosecution is fully dependent on the ODPP, as was held in Peter Ngunjiri Maina Vs Director of Public Prosecutions (2017) eKLR, the Court held that:

“The decision of the DPP is unfettered but it must be accountable. The discretion of the part of the court to interfere with the decision of the DPP is untrammelled but it is not to be exercised whimsically.”

Further, in the case of Communications Commission of Kenya Vs Office of The Director of Public Prosecution & Another (2018) eKLR, the Court of Appeal held that:

“The decision whether or not to institute criminal proceedings is purely discretionary. That discretion must however be exercised by the DPP within the constitutional limits, that is, with regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.”

The ultimate resolve to prosecute or discontinue with the same has been squarely placed upon the ODPP, upon whom accountability also rests. 

Relevance of institutional convergence in criminal justice

In his Theory of Justice, John Rawl asserts that justice is the first virtue of social institutions, as truth is of systems of thought. These two institutions are the key gatekeepers of justice, within the criminal justice system. Without collaboration, therefore, natural justice will easily suffer greater loss, true justice not be meted out to criminal offenders, and public confidence in the criminal justice system will be punctured, not augmented. 

Only satisfactory and exhaustive investigations that provide sufficient material evidence can aid the prosecution in meeting the evidential test during the trial. In this regard, feuds, fights and clashes between the DCI and ODPP threaten the very essence of justice in criminal cases.

In recent months, the DCI and DPP crossed swords and could not see eye to eye. The initial push-and-pull supremacy battle between the former DCI boss George Kinoti and DPP Noordin Haji played out in the public through media for a long while, and even got litigated and ultimately settled by the court. 

It remains clear that the greasing of elbows of relations between agencies in the criminal justice sector, such as the DCI and DPP, is crucial in smoothening multi-agency cooperation in criminal justice. The strained relations between the DCI and the DPP were predicated on power struggles regarding who has the authority to prosecute criminal matters, which battle, if unresolved, would have compromised the course of justice, and the public interest would not have been safeguarded.

Curiously, the DPP Noordin Haji has recently withdrawn various high-profile criminal cases facing tier-one politicians and state officers, on grounds that the cases were politically motivated, and that various accompanying affidavit pieces of evidence were obtained under duress and had been recanted by responsible DCI officers. While the DPP has dropped cases in the past for lack of evidence or technicalities, the timing and rate at which high-profile cases have been collapsing are curious, and worrying and could easily send a wrong message of political interference.

The professional and moral ambiguity in these circumstances dents the image and public trust in the DCI and the ODPP heightening the perception that they are merely tools at the disposal and expediency of executive fiat. If competent investigations are the coefficient of fruitful prosecution, investigations of any kind must not be politically instigated, leading to malicious prosecutions.

Such high-profile cases whose charges have been dropped include the Kshs 7 billion corruption case against Deputy President Rigathi Gachagua, Kshs 400 million charges against former Kenya Power managing director Ben Chumo and 10 others after police failed to conduct further investigations to strengthen areas identified as weak.

The foundational principles of public service enshrined in the Constitution tethered to the statutory provisions of the functions of the ODPP underscore accountability in public service. The Constitution significantly prescribes that, 

“The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority. In exercising the powers, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.”

Therefore, if objective inquiries into the conduct of the former DCI George Kinoti and DPP Noordin Haji unearth evidence of unethical conduct with ulterior motives, it is proper that due process should be undertaken to hold them to account.

Conclusion

The rivalry between the DCI and DPP is a scourge of the criminal justice system. The definitive wrangles grossly risk undermining the complementary nature of multi-agency cooperation. It, therefore, remains judicious that the cooperation between the agencies, such as the EACC, National Police, DCI and the ODPP appreciate the interplay provided for in law, to safeguard, and perpetuate public interest and the course of justice at all times. 

Javas Bigambo is a lawyer and political scientist, serving as the Managing Director at Interthoughts Consulting Ltd

An Assessment of Major Institutions Enabling Devolution in Kenya and Their Consequential Effects

By Javas Bigambo

(This article was first originally published on December 21, 2021 by The Africa Centre For Ideas and Dialogue Program (ACIDP).

After decades of centralised governance dating back to the colonial era, Kenyans resolved to transition to a system where powers and governance are shared between the centre and the devolved units. 

Governance Expert Javas Bigambo

As such, devolution was introduced in Kenya through a new constitutional dispensation, by the promulgation of the Constitution of Kenya 2010 that divided Kenya into 47 counties. Kenya’s devolved system is provided for in Article 1 (3) and (4); Article 6 (1) and (2); Chapter Eleven and in the First, Fourth and Section 15 of the Sixth Schedules.

Devolution is a “system of multilevel government under which the Constitution creates two distinct and interdependent levels of government – the national and the county – that are required to carry out their mutual relations in a consultative and cooperative manner.” County governments have been argued as being “relatively autonomous and coordinate” rather than subordinate to the national government. 

Article 189 makes it imperative that each level of government performs and exercises its powers in a manner that respects the functional and institutional integrity as well as the constitutional status of institutions of government at the other level. The Intergovernmental Relations Act, 2012 establishes the legal and institutional framework for consultation, cooperation and dispute resolution between the national and county governments and amongst the county governments. 

The Constitution of Kenya 2010, specifically through Article 174 and Article 175 that set out the objects and principles of devolution respectively, there are key statutes that guide the national and county governments in enabling devolved governance. 

The operationalisation of the county governments commenced following the March 2013 general elections. For the first time, county governors, deputy governors, senators and county women representatives were elected. These 47 new county governments preside over devolved functions such as the provision of health care, pre-primary education, and maintenance of local roads, which were previously the responsibility of the national government. 

Counties can identify problems, make policies, plan, and collect revenue, execute the budget, accounting, auditing and monitoring and evaluation and citizen participation in decision-making.

Transition to county governance and implementation of devolution required the building of new institutions, abandonment or restructuring of some of the old institutions, and shifting of roles, responsibilities, and accompanying resources between the two levels of government. Furthermore, it required not only a change in structures and systems but also a change in governance culture by adopting a culture that is compatible with the Constitution. 

To achieve this, the Constitution provided for a three-year transition period after the March 2013 general election to put in place the appropriate legal, policy, and institutional measures to facilitate the implementation of devolved governance. The principle of devolution involves shared governance at the national level and self-governance at the devolved level.

Institutions that enable Devolution

The Ministry of Devolution 

This is a province of the national government and plays a critical role in policy formulation. The State Department for Devolution (SDD) draws its mandate from Articles 6, 10 and Chapter 11 of the Constitution of Kenya; the Executive Order No. 1 of June 2018 (Revised) and the various Acts under which devolution is implemented including the Intergovernmental Relations Act, 2012, County Governments Act, 2012, Urban Areas and Cities Act 2011, and Public Finance Management Act 2012. 

The approval of the Devolution Policy by the Cabinet in October 2016 was particularly significant. The policy is founded on the sovereignty of the people of Kenya, the supremacy of the Constitution, national values and principles of governance, the Bill of Rights, the objects of devolution and the principles of devolved governments. 

The Council of Governors (CoG) 

Section 19 of the Intergovernmental Relations Act 2012 establishes the Council of Governors. Its mandate is to facilitate consultations amongst county governments, sharing of information on the performance of the counties in the execution of their functions with the objective of learning and promotion of best practice and where necessary, initiating preventive or corrective action. 

Also, considering matters of common interest to counties, dispute resolution between counties, facilitating capacity building for governors, receiving reports and monitoring the implementation of inter-county agreements on inter-county projects, among others. The CoG was formally constituted in March 2013 and currently has 12 sectoral committees and four support units to guide its operations.

The Senate

Chapter eight of the Constitution establishes the Legislature. Article 93 states that “There is established a Parliament of Kenya,” (Parliament), “which shall consist of the National Assembly and the Senate.” The two Houses of Parliament shall perform their respective functions under the Constitution as stated in Article 93 (2) of the Constitution.

The Senate’s overall function is to protect the interests of the counties and their governments. Article 96 articulates its role in making law, and determining the allocation of national revenue among counties; Article 217 overseeing national revenue allocated to county governments, while Article 145 and 150(2) in considering and determining any resolution to impeach the President and Deputy President, Speaker and Deputy Speaker of the Senate and Governors.

The Constitution further gives Parliament budgetary oversight powers. Allocation of national revenue is a critical role played by the Senate, in ensuring adequate resources for the functioning of county governments. This role focuses on the division of revenue between the national and county governments. Article 217(1) mandates the Senate to determine, by resolution, the basis for allocating the share of national revenue that is allocated annually to the county level of government. 

Immediately after the approval of the Division of Revenue Bill, the Senate is charged with considering, deliberating and voting on the County Allocation of Revenue Bill which divides revenue allocated to the county level of government amongst the counties using the formula developed by the Senate every five years as per the provisions of Article 217. Revenue Bill and County Allocation of Revenue Bill must be introduced in Parliament at least two months before the end of each financial year.

Controller of Budget 

The Constitution splits the Controller and Auditor General’s Office by establishing two separate independent offices: the Auditor General’s Office and the Office of the Controller of Budget.

The Office of the Controller of Budget (OCoB) is an independent office established under Article 228 of the Constitution of Kenya mandated to oversee implementation of the budgets of the national and county governments by authorizing a withdrawal from public funds under Articles 204, 206 and 207. 

Every four months, the Office is required to submit to each House of Parliament a report on the implementation of the budgets of the national and county governments. It is also required to prepare, publish and publicize statutory reports, conduct investigations and conduct alternative resolution mechanisms to resolve disputes.

According to the 2019 State of Devolution Address , in the period between 2018 and 2019, county governments made significant strides in sustaining devolution gains across various functions. 

Commission on Revenue Allocation

The Commission on Revenue Allocation (CRA) is an independent Commission defined in Articles 215 and 216 of the Constitution of Kenya 2010, mandated to recommend the basis for equitable sharing of revenues and financial management of both the national government and county governments. Additionally, under Article 216(4) it determines, publishes and regularly review a policy setting out the criteria to identify marginalized areas for purposes of Article 204(2)[12].

County Assembly

Article 176 (Chapter Eleven) establishes county governments consisting of a County Assembly and a County Executive. The major role of the members of the County Assembly in Kenya is legislation, representation, and oversight. 

According to Section 8 of the County Governments Act, the County Assembly shall vet and approve nominees for appointment to county public offices, perform the roles set out under Article 185 of the Constitution, and approve the budget and expenditure of the county government per Article 207 of the Constitution. 

Also, the legislation contemplated in Article 220 (2) of the Constitution, guided by Articles 201 and 203 of the Constitution, approve the borrowing by the county government per Article 212 of the Constitution, approve county development planning and perform any other role as may be set out under the Constitution or legislation.

Sadly, it continues to emerge that County Assemblies are merely used to rubber-stamp the decisions of the County Executive. The aspired independence and strong oversight role are not playing out as desired by the people.

The county budget and economic forum

The Public Finance Management Act, 2012 establishes the County Budget and Economic Forum to provide a platform for consultation by the county government on the preparation of county plans, the County Fiscal Strategy Paper and the Budget Review and Outlook Paper for the County. 

This forum also discusses matters related to budgeting, the economy, and financial management at the county level. The membership of this important consultative body is drawn from organizations representing professionals, business, labour issues, women, persons with disabilities, and the elderly and faith-based groups at the county level. 

Demonstrable Failure by Institutions Enabling Devolution

Inadequate and delay in disbursement of funds

This is one challenge that is experienced across the board by all 47 counties. The shortage of funds in counties has primarily been caused by the insufficient allocation of money from the national government. Additionally, the allocation of funds is more often delayed and irregular which greatly cripples the ability of the county governments to run and provide essential services. 

The same way the national treasury is working with national government ministries and parastatals is the same way it should be dealing with the county governments. The national treasury should release funds to counties quarterly rather than monthly to facilitate proper internal planning by county governments, and to avoid unnecessary monthly delays, which affects the implementation of programmes and projects.

Duplication of roles and a bloated workforce

The failure by the national government to fully devolve certain functions is a major impediment of devolution. Pre-primary education is, for example, managed by the county governments whereas all other levels of education are managed by the national government. In addition, the national government has not fully organized the various ministries in line with the devolved structure, thus creating barriers in the implementation of duties and accountability issues.

This has resulted in conflicts between the two levels of government in the performance of roles since both employ workers who end up performing similar roles. Such overlaps are solely responsible for the inflated wage bill. There is a very thin line between some of the offices at the national level. This is a challenge in maintaining checks and balances of the county executive by the county assembly.

Unnecessary interference by the national government

In the case of the International Legal Consultancy Group & another v Ministry of Health, the national government procured medical equipment for use in county health facilities. A conflict arose when the national government demanded that the counties ought to pay for the equipment, which had been procured at very exorbitant prices.

This is a clear illustration of the national government meddling in the county governments’ affairs and further illustrates a situation where the county governments do not act independently, as they were designed to, but rather as puppets of the national government.

Lack of adequate public participation

The general citizenry has not been involved fully in public participation in the counties. For instance, Makueni County was almost dissolved, as the public was not involved in the budgetary allocation process. The County Assembly passed unconstitutional bills including the Makueni County wards development funds that allowed the leader of the majority to determine the amount to be awarded to each ward. This was

The court in some instances has nullified some of these laws due to unconstitutionality and inconsistency in the processes. For instance, the Kiambu Finance Act was nullified for lack of public participation.

Gaps in law and absence of relevant policies

Currently, a governor leads the County Government of Nairobi without a deputy following resignation. The law is not clear on what should happen in such a situation thus becoming a challenge.

Policy recommendations 

Public participation be enhanced as per Article 174 (c)

The counties should prioritize involving their population on any issue before taking a stand. It matters not whether the matter is trivial. The gatherings should also be made in open common ground and not segregated hotels, as was the case with Kiambu County. Enhancement of people participation in affairs and determination of their destiny in county governments will facilitate openness hence curbing corruption.

Addressing inadequate budget hence promoting social and economic development as per Article 174 (f)

The county governments should develop innovative ideas to generate revenue to boost their annual allocations. The county assemblies should also enact laws that promote mobilisation of local resources and revenue collection to boost its income to meet the expectation of the people. 

Embracing public-private partnerships and sustainable borrowing could be options to assist them in implementing county development plans. Counties can borrow from Machakos where social amenities such as the people’s park charges entry fees.

Coordination between the two levels of government

The constant conflicts pitting the national and some county governments should be alleviated through proper collaboration between the two levels of government to achieve smooth operational existence. The mutual understanding between the two levels of government goes towards improving service delivery and attaining the requirements set by the Constitution of Kenya 2010.

Counties should be encouraged to take arbitration to solve their differences. In Central Kenya, Nyandarua and Laikipia are feuding over taxation in the commercial hub of Nyahururu town; they should be encouraged to arbitrate.

Need to define the role of deputy governor and appointment in case of vacancy.

Article 180 of the CoK 2010 and the County Government Act, 2012 should be amended to provide for clear roles for the Deputy Governor. This will cure the anomalies and political tussles as witnessed in the case of the Nairobi County Government. 

Separation of powers

There is a need to enhance the separation of powers between county executives and county assemblies by ensuring direct allocation of funds to county assemblies through national assemblies. This will make County Assemblies not beholden to the County Executive for operations. It will also reduce arm-twisting of County Assemblies by County Executive. 

Abolishment of foreign benchmarking trips

Eliminate wastage of public resources through irrelevant benchmarking trips and promote transparency and prudent utilization of public resources.

Strengthen roles and functions of enabling organs

Key enabling organs of devolution such as the Summit and IEBC should be strengthened and released from the grip of the national government. Currently, only the President can call for a Summit meeting at his pleasure. This leaves the Council of Governors compromised and weakened.

Conclusion

The existing institutions that enable devolution in Kenya continue to demonstrate their functionality, even though their roles can be perfected. The policy and legal framework provide for fundamental institutions that enable the wheels of devolved governance to work effectively in Kenya. The uncompromising execution of mandates by those institutions is the answer to the various hiccups in devolved governance in Kenya. Further, there is a need for sufficient political goodwill at the National and County levels, because that removes unnecessary bottlenecks. 

Mr Bigambo, a lawyer and political scientist, is managing consultant at Interthoughts Consulting

Election Preparedness: Institutionalising Presidential Transitions in Kenya

By Javas Bigambo

(This article was first originally published on October 13, 2021 by The Africa Centre For Ideas and Dialogue Program (ACIDP).

Elections have a natural way of disrupting the status quo, especially when the people’s will is respected and sealed through new social contracts for governance. Democracy is sustained through regular, predictable, dependable and transparent elections.

In political democracies, no doubt, each time a country goes to a general election, it does so not just to sustain its democracy but also to re-negotiate and reclaim its nationhood. Ideally, elections serve to advance the aspirations, goals and values of the majoritarian collective. 

Election preparedness must be given the collective seriousness it deserves.

In most elections, the institution of the presidency is at the centre of electoral politics. The attendant power that it wields makes it a hot contest between opponents at the end of each electoral cycle. The incumbent is either keen to retain the seat or pass on to a preferred successor, while the opposition wants to ascend to the seat.

Writing on the performance of African political parties after the ‘Third Wave’, Carrie Manning (2005) noted that since the early 1990s, many countries in Africa embraced multi-party democracy. However, few of the elections conducted during the period were successfully democratic. The incumbents returned to power after extensively manipulating the electoral process.

Across the African continent, there were only a few cases of successful competitive electoral democracies in countries such as Botswana, Senegal and Mauritius, which had held competitive elections before the opening of democratic space in the early 1990s. The list also includes countries such as Benin, Malawi and Zambia, which had successful transitions through elections

Kenya’s nation- state has been a constitutional democracy since its founding in 1963. And just like in other African countries, the institution of the presidency has been at the centre of politics.

Politics of presidential transitions

The politics of presidential transitions can easily be seen through the duopoly of manipulation and political guardianship shaped by self-preservation, ethnicity, protectionism, favouritism, safeguarding primitive accumulation of wealth, and ring- fencing the political elite club that the presidency seems to be. Arguably the immediate post-independence Kenyatta regime’s key concern was securing the interests of the emerging political class through capital accumulation.

Whereas pluralism has engendered an environment of competitive elections in Kenya and other democratic ornaments such as tenure limitation, the electoral culture has remained the same, a few successful regime changes notwithstanding. 

Behind the veneer of constitutional democracy ideology is the binary between ethnic fundamentalism and elite capture of Kenya’s political space. Ethnicity has been weaponised for subjugation and emotional control. This instrumentation of ethnicity in Kenyan politics has consistently paid enormous dividends to the few elite, who use it purely for personal gain. That is precisely where the problem starts, with infinite consequences.

Since the reintroduction of multi-party politics in 1992, ethnic violence has reared its ugly head repeatedly around election time. Even in elections considered peaceful, as was the case in 2002 and 2013, the threat of politically instigated ethnic violence remained real.

This has continued to make presidential transitions in Kenya, a game of political survival where opponents are defeated and not ideological perpetuation or propagation of ideal nationhood.  Many political bigwigs who never succeeded in earth-shaking presidential elections were relegated to political oblivion. These include Jaramogi Oginga Odinga, Kenneth Matiba, Simeon Nyachae, George Anyona, among others.

In over five decades now, elections in Kenya have often been the metonymy of violence and insecurity. While many general elections have been conducted in post-independence Kenya, some specific electioneering events and elections stand out. They are crucial in analysing election preparedness and presidential transitions across the election cycles. 

This article examines the remarkable presidential transitions in Kenya and the critical need for institutionalisation. 

Tracking Kenya’s presidential elections 

Firstly, is the fourth post-independence election in Kenya held in 1983. During the campaign, all contestants had to get clearance from the ruling party KANU. One of the contenders, Jaramogi Oginga Odinga, and some of his former KPU party members were denied permission due to the one-party state constitution in force. 

The campaigns lasted for one month, and candidates had to prove their loyalty to President Moi. However, only 48% voted during the elections, making it the lowest figure since independence. In addition, 40 % of incumbents were voted out.

Secondly was the 1988 general election. This happened at the peak of regime consolidation under President Moi. Constitutional amendments weakened the local opposition and saw control of the presidency rise and the manipulation of the legal system. 

‘Mlolongo’, a new queue voting system, was introduced where separate queues were formed for each candidate and voters joined according to their preference. The people in each queue were then counted, and the presiding officer announced the results. However, there were incidents of violence during the campaign, and several candidates complained of being rigged out by the queue-voting system.

Thirdly, the 1992 election marked a new multi-party dispensation. Several leaders began to oppose the one-party system in the first quarter of 1990. In July of that year, public anger exploded in the Saba Saba uprising, after anti-Moi forces organised a pro-democracy rally resulting in several deaths. Pressure from local and international bodies culminated into constitutional amendments in 1991 that restored the right to form alternative political parties. However, President Moi still won the 1992 and subsequent 1997 elections.

It is noteworthy that the ethnic divide significantly contributed to widespread pre-election violence in the 1992 and 1997 elections, in which hundreds of people lost their lives. 

The eighth post-independence election in 2002 was perhaps the most significant in Kenya’s presidential transition history. The Constitution had stretched Moi’s tenure to the elastic limit. He could not seek re-election, which marked the first time a presidential transition took place through the ballot.

The run-up to the elections was marked by several significant events, including the Electoral Commission of Kenya (ECK) asserting its independence and authority by rebuking political parties and candidates who violated the election code of conduct. This allowed for a free and fair election process.

The other significant event was the fallout in the ruling party KANU after President Moi chose Uhuru Kenyatta as his successor, and triggered a rebellion within party ranks. A group of cabinet ministers called the Rainbow Coalition opposed Moi’s choice and joined forces with the opposition to form the National Rainbow Coalition (NARC). 

With KANU facing a united opposition for the first time, the mood for change was in the air. The campaign period was relatively peaceful, with non-partisan security by the police. Kenyans flocked to NARC rallies in droves with a new anthem, “Yote yawezakana bila Moi” (All is possible without Moi). NARC was perceived as the people’s saviour from want, corruption, misrule, mismanagement of public resources. NARC defeated KANU ending its 40-year rule.

The defeat of Moi’s preferred candidate was overwhelming and settled by a united opposition easily accounted for the subsequent smooth hand-over of power and the relative calm during the first two years of opposition leadership. 

The fifth and perhaps a turning point that dented Kenya’s history was the December 2007 elections. The incumbent Mwai Kibaki faced off with the leading opposition candidate Raila Odinga. While the actual voting was peaceful, the announcement of the presidential election results triggered violence. 

The opposition protested widespread irregularities, presumably doctoring of the presidential votes. Kenya descended into inter-ethnic violence that left over 1,000 people dead and 600,000 displaced from their homes.

In retrospect, the 2007/8 post-election violence resulted from social tensions that had built up over many years. A key factor was successive political leaders’ skewed allocation of state positions and resources.

It is noteworthy that a constant factor contributing to the related electoral violence is the ethnic divide. The centrality of ethnicity in political formations and disputes during the Jomo Kenyatta, Daniel Arap Moi, Mwai Kibaki and Uhuru Kenyatta regimes indicate the translucent veil of tribal groups always precedes the dictates of the constitutional order of presidential transitions through democratic elections. These are sustained and propagated on the whole by ethnic capitalism. 

In its organic form, political violence is an anecdotal illustration of intolerance, intimidation, and barbarism, through which insecurity instils fear among the electorate so as not to register as voters or not to turn out to vote as such political violence is always pre-meditated, targeted and financed. However, the aftermath of the 2007/08 post-election violence put into sharp focus the electoral and presidential transition dynamics in Kenya.

Codification of presidential transitions

Indeed, presidential elections and the envisaged consequence of transitions have always made general elections consequential in Kenya. Since the advent of multi-party politics in Kenya, presidential changes have been constitutionally instigated. However, the Constitution of Kenya 2010 has codified the transition procedure to avert the hurried transfer of power, as was witnessed in December 2007. 

However, not all presidential transitions in Kenya have occurred through the ballot. Under the repealed 1963 Constitution, then Vice President Daniel Arap Moi ascended into office through inheritance of leadership based on constitutional edict, without direct election by the people, after the death of President Jomo Kenyatta. 

While acting, President Moi used the three-month period to consolidate his position and marshal enough support to easily secure KANU’s final seal of approval as President in the November 1978 presidential election.

Regarding transition in the Presidency as a function of democratically held elections, Article 141 of the Constitution of Kenya 2010 provides for the assumption of Office of President. Article 146 (1) provides that upon vacancy in the Office of the President, the Deputy President assumes office for the remainder of the term and necessitates no election for the President’s office.

The vacancy may occur through death, resignation, and lack of capacity. These circumstances would automatically trigger a transition in the office of the President. While this Article prescribes how the President-elect assumes office, the most significant challenges facing Kenya are primarily how succession politics are conducted due to the heavily vested interests and cutthroat competition.  

The stakes and the cards in presidential transitions

Holders of the Presidency are always obsessed with entrenching their legacies, buoyed by superiority complexes and bewildered with the thought that someone they dislike may rise and inherit the most coveted office. The consciousness of personal interests as the axis of presidential transitions is the root of comprador politics in this regard.

From 1998, Moi engaged in a carefully calculated strategy to manage the presidential succession in his and his party’s favour. He settled on Uhuru Kenyatta as his preferred successor, contrary to the aspirations of his long-serving Vice President George Saitoti. It is mysterious why Moi was determined to move the ocean to have Uhuru elected despite him being a political neophyte, devoid of personal political networks, experience, strategy or organic political ambition. 

Moi coerced the entire KANU party structure to toe the line, branding Uhuru Kenyatta as a “Moi project”, a tag that was used against him in the general elections. He was trounced by a thunderous landslide by NARC’s (opposition coalition) candidate Mwai Kibaki, in what is settled in Kenya’s history as a groundbreaking presidential transition that established democratic principles in Kenya’s politics forever.

Another major presidential transition took place during the 2013 general election. The incumbent, Mwai Kibaki, was not seeking re-election. Prime Minister Raila Odinga ran against Deputy Prime Minister Uhuru Kenyatta. Mr. Kenyatta trounced Raila, despite his indictment by the International Criminal Court for crimes against humanity following the post-election violence of 2007/08.

The subsequent general elections in 2013 and 2017 were hotly contested, highly financed and publicised. Even though the presidential transition politics were ever at a fever pitch and the election outcomes contested, the disputes were settled by the Supreme Court. All parties were at peace, ultimately, with the decisions. 

This demonstrates that however vicious the presidential competitions are if governance institutions are well resourced, independent and competent, presidential elections will not be rife with fears of clashes or bloodletting and related violence. 

How do we curate the vicious presidential transitions?

In Kenya and elsewhere across Africa, elections are a threat, primarily, to state capture fundamentalists, the self-styled elite choreographers of doing business with governments and with politicians who advance personal business interests with government ministries. These interests fuel solid competition for the presidency in Kenya and beyond. 

Of course, political processes always have outcomes, whether intended or unintended, and presidential contests are as such. At issue are both the form and the substance of presidential transitions in Kenya.

The big question is how do we ensure that presidential contests are a matter of practical, verifiable and demonstrable ideas, far from the tribal cards that are always at play?

Firstly, presidential candidates and their parties should have their political manifestos/ agenda ready and presented to the public a year before elections. This will provide for adequate public discourse and scrutiny. 

Secondly, there must be a mechanism of auditing the implementation of political manifestos of the ruling party a year to the election by an independent multi-agency body headed by the Auditor General. This will give premium to the seriousness of political commitments made by political parties and their presidential candidates through their manifestos/ agenda.

Thirdly, while Kenya has enacted numerous legislation inspired by foundational principles of good governance in the Constitution, governance challenges abound in all public sectors. The perception of using public office to plunder public resources and utility of political office for personal gain sustain motivations for accessing political office, more so the presidency. It would be helpful device mechanisms of ensuring actual checks and balances in public offices. 

Fourthly, the power of Parliament to determine budgetary allocation for constitutional offices, including constitutional commissions, should be checked. This is informed by the political vendetta meted on public and constitutional offices that try to be visibly independent. They include the Judiciary and constitutional commissions such as the Kenya National Commission on Human Rights, which have had their operational budgets significantly cut through political machinations and as a form of punishment. 

The Controller of Budgets should moderate proposed budgets by constitutional bodies and public institutions. This can be done by the amendment of relevant laws and Parliament not having the monopoly of power to vary budgetary proposals. 

Fifthly, the number of political parties should be regulated. The registration of multiple parties in electioneering periods, or utility of fringe political parties to propagate ethnic bargains at the expense of the universality of national politics fragments the body of politics to serve narrow or sectarian political interests. This environment breeds politics railroaded by cartels and special interests.

Sixthly, key political parties and politicians should not have direct control or influence over the Independent Elections and Boundaries Commission. The essence of the constitutional protection of IEBC’s independence was to ward off political influence. This is yet to be achieved, going by the direct attacks, attempts at intimidation, and constant calls for the removal of various commissioners, especially in electioneering periods.

Regarding election-based violence, there is a need to undertake thorough planning for general elections and monitor all forms of early warning systems for violence and incitements. This should include assessing the capacity needs of the police, establishing coordination mechanisms at different levels among all relevant governmental and non-governmental actors. Additionally, presidential elections, including election security and public order management, have to be given particular scrutiny. 

Lastly, more steps need to be taken to ensure responsible and objective media coverage of political campaigns and elections, with the intent to illuminate the form and substance within the twists and bends of presidential transition politics.

Successful and peaceful political transitions fortify democracy. This is a principle that the consciousness of the citizenry should properly and eternally guard. High standards of democratic elections, respect of independent institutions and care for free, fair and verifiable elections should be non-negotiable principles. These will be guarantees of peaceful and cherished presidential transitions. 

Mr Javas Bigambo, a lawyer and political scientist, is managing consultant at Interthoughts Consulting

Open Letter to Chief Justice Emeritus David K. Maraga

Dear Hon. Maraga, Retired Chief Justice of Kenya,

I’m sure this this letter will reach you at your Nakuru home, because just the other day I read in the dailies that the Directorate of Immigration has inked a cooperation agreement with Kenya Posta, to be delivering people’s passports to their houses, they will not refuse to bring this one, I hope.

As you enjoy your retirement, I know you follow the news, either on TV or on radio. Your retirement was a big thing, it was all over the news, and some people were happy that age had caught up with you while they are still active, quite agile like the colobus monkey in the Coastal forests of Kenya.

They replaced you. It was global news. It is a lady who was given the job. Such jobs, I’m told, have a way of eluding ladies, and history has it that she is the first one to occupy such job in our Republic. I was happy too, not just for her, but for all women too. She has managed to punch through that glass ceiling, and soon the roof will be in trouble. I tell you, women in this town have not sat down since the day of her nomination. Her name is Justice Martha Koome. I’m sure you remember her.

She used to be in the Court of Appeal as a Judge, where you used to be before you became Chief Justice. Now she has occupied that big office that used to be your own before retirement age signed a deal with you. So women are still dancing. No, we are not worried if their muscles will ache or some legs will break. A few good doctors in town will fix whatever bones may break, and the masseurs will have something for their pockets too as they tenderly help those muscles to be restored back to factory settings.

There have been silent whispers across town, that maybe she may not be larger than life, that perhaps someone somewhere has put her in the pocket, or maybe in a bottle, already. These whispers are not good. To imagine that she is possibly tightly held in a bottle somewhere makes some of us desire to empty the contents of our urethra on ourselves. Our fear is whether these fears are real. Impartiality is a hard thing to have nowadays, I tell you. But no one has written her off yet. People are still hopeful because maybe she is still locating the keys to her office, that office that you protected with every organ you have.

The other day a passerby was having a monologue, quite a disconcerting soliloquy, wondering whether the new CJ will fully and ably protect the independence of the Judiciary, and by so doing protect the judges. The passerby has watched the new CJ bow to the President after she had been sworn in, and kept wondering whether that bowing was symbolic, symbolic of the possible genuflection to the Executive. So the passerby kept wondering whether the new CJ will be passerby in her office.

Do you remember the 40 judges whose appointment did not happen during your tenure, even after you fervently pushed for it and even lamented publicly to the nation through the media in that scorching sun? Do you? Thirty four of them have been gazetted. Six of them have been asked to go sit on a nail, possibly because their judgment pens are too bold and too independent to care. No one knows. The big man is the only one who knows. The President is loved by the people. They overwhelmingly voted for him. In fact, Kenyans are committed to finishing the journey with him. He has always been known to mean well, though his actions at times depict otherwise.

I read somewhere that the President is supposed to appoint nominees forwarded to him by the Judicial Service Commission. But he has decided to appoint some, and disappoint others. Do you think jubilee government is a chicken hatched from the egg of impunity?  I ask this because I know impunity is the scourge of democracy. Do you think it is possible for dynasties to die due to potentially weak heirs?

Tell me, when you finally read this letter, what made you that bold? During the JSC interviews when you were seeking that CJ job, you asked for a Bible, lifted it up and lifted it to the high heavens, declaring that you have never been bribed and that you never will. People thought you were joking. Then you rose each day, spoke passionately, but softly, about the need for a well-funded and totally independent Judiciary.

By the way, are there rotten potatoes in the Judiciary? Long ago there was a radical surgery that left the surgeon with injuries, though the patient had the oncogenic tumor removed.

I am told after your appointment most people had written you off. They said that you looked so soft life bread soaked in water. They said that due to slight mother tongue participation in your speech, you will not climb to the mountain top like that slain eloquent Baptist preacher from Atlanta Georgia, who eloquently proclaimed to the world during the civil rights struggle that he had a dream of an equal and harmonious American nation. By the time you left office, you had climbed the mountain top, and I hear that you are being looked at as a Saint, already.

Some people are worried that your successor may not be having a backbone, that her entire body is all fleshy fat, like a snail. I am sure they are underestimating her. I told them that she has got slight mother tongue participation in her speech too, just as you do. I reminded them that she looks quiet and harmless, just as you do. I reminded them too of the saying that if it looks like a duck, walks like a duck and quacks like a duck, then it is not a goose. Am I being too optimistic? Maybe she fits in your shoes. But no one knows. Just that her silence is giving people goose bumps. You see, you know her best. You worked with her. You are best placed to confirm to us.

Some people are worried that because at one time she was part of a bench that made a judgement at night, that she may have a preference of operating in the duck, like a bat. Bats are strange, you know, and scary. It is said that they have defied classification because they are neither birds nor animals. I have never examined one closely, but I agree with the aspect of strangeness.

I hope she won’t soil your legacy. People like you are hard to find, and equally hard to be celebrated by those in power. Recently, a famous trade unionist had a road named after him, and it is said he has employed 10 young men to guard the signage, to stop some activists from uprooting it, after initial such attempts were thwarted. Why wouldn’t such a road be named after you? But then, I think they would not want to remember you. Do you think I am wrong? Alright.

Very many Kenyans celebrate you, I hear. The mention of your name makes them jump high, with a desire to scratch the sky in excitement. But others consider you a conservative villain or a chief jurist with an overpowering appetite of rattling the President. Do you consider yourself an archetype of conservative jurisprudence? You and your predecessor Dr. Willy Mutunga remain interesting jurists. I will be glad if you send him this letter too. His reflections are welcome.

I hope you left a letter to your successor, just to encourage her. She is an honourable lady. She needs to be her own woman, and guard against intimidation or manipulation. She has got nine solid years before age hounds her out of office like it did to you.

To last for those 9 years in office will take quite some energy, controversy, independence and a spine. If not, she may just find herself out of the office before the cock crows three times. I am sure no citizen would like to think that having her in office as Chief Justice is an incurable miserable misfortune. That is why we are praying for – not to prefer light duties, but to grow a backbone, possibly one made of steel.

Kenyans want her to be strong, assertive, visibly bold, and to have regard for the other arms of government too. She must be the guardian of liberty and the foremost vanguard of the constitutional order. That is what Kenyans want to see. Are Kenyans demanding so much so soon? In other circumstances, caustic politics have a way of making the Judiciary and Parliament flexures of the Executive.

I thought I should write to you about these things. These thoughts of mine. I await your reply, through the Posta Kenya.

Yours Sincerely

Arafat, the Grandson of Samson.

Cohesive Nationhood Survives on Responsible Free Speech

(This article was first originally published on February 21, 2021 by The Africa Centre For Ideas and Dialogue Program (ACIDP).

By Javas Bigambo

Kenya’s political space is currently heating up with discussions on what has been framed as ‘dynasty – hustlers’ debate, being driven by political elites from opposing sides.

Potentially, this increasingly confrontational rhetoric may easily lead to either pre or post-election violence if not nipped in the bud early enough. If the memory of the 2007/2008 post-election vicious conflicts serves as a vital lesson, Kenya’s citizenry should be troubled by the divisive hustler-dynasty narrative’s scale-up.

Politically instigated violence is a threat to cohesion among communities that constitute the Kenyan nation. Therefore, it follows that cohesive nationhood survives on, among other things, the nutrients of responsible free speech. This informs and sustains nascent democracies whose fragility is only secured by a high regard for the rule of law.

Freedom of speech

The genealogy of mankind’s right to free expression can be traced back to heralds of modern civilisation. This era brought the entrenchment and propagation of salient principles and rights for humanity’s mutual coexistence.

Those rights are inherently human, predicated on shared values whose protection fosters mutual coexistence.

Among these rights is the freedom of speech. Undoubtedly, freedom of speech and expression is at the core of fundamental rights and freedoms for any democratic society such as Kenya.

As it is with other rights and freedoms, freedom of expression is protected by local judicial mechanisms and emphasised by hawk-eyed protection of independent states’ international assembly – the United Nations.

Over time, this right’s significance has been accentuated by being embedded in Constitutions, such as Kenya’s. Freedom of expression is enshrined in Article 33 of Kenya’s Constitution 2010, and includes the right to seek, receive, or impart information and ideas.

Curtailing of free speech?

Yet, regardless of how sacrosanct it is, this right has been subjected to various forms of censorship, restrictions on access, and violent acts directed against those whose views or inquiries are seen as somehow dangerous or iniquitous.

The strictures of statutory law in the interests of war on terror and national security, compounded by the lack of a clear definition of hate speech, have given much latitude for limiting freedom of expression. Further, Kenya’s penal code criminalises incitement and frowns upon it as an enabler of violence and contrary to the law’s aspiration. 

The Computer Misuse and Cybercrimes Act, 2018, passed in May 2018, further threateningly restricts online freedom of expression by imposing penalties of up to 10 years imprisonment for the publication of “false” or “fictitious” information that results in “panic” or is “likely to discredit the reputation of a person.

So, freedom of speech and expression protection and guidelines are properly domiciled in Kenya’s corpus juris.

From its founding, Kenya’s democratic trajectory has continually been shaped by explorations of the freedom of speech and expression, and the various liberal uses of the same mostly enabled by ethnocentric paradigms.

Incitement versus freedom of speech

Kenya’s political sphere is dominated by ethnocentric gatekeeping, where ethnic groups are merely seen as voting blocks for political harvesting by leading politicians.

Kenya’s most ethnically demarcated regions are seen as political protectorates, jealously guarded by the regions’ political kingpins, who lose their minds whenever other prominent political leaders are seen to be making inroads.

It is for protecting political turfs or fighting for political survival and interests that politicians and their support bases find themselves on the incitement trajectory.

There seems to be a very thin line between freedom of expression and incitement. However, those who support incitement are responsible for this situation.

Ordinarily, incitement is translated as the intentional and reckless remarks aimed at stirring up and whipping people’s emotions along a sensational subject matter such as property ownership, ethnic regrouping, political identity or any matter through which one antagonises a group against another.

Inciting remarks are dishonest, untruthful, and irresponsible. They are founded on ethnocentric biases or ulterior political motives as Kenya’s political history reveals. 

A cycle of entertaining incitersh out

Every electioneering period in Kenya is always filled with publicised remarks from politicians, which are sometimes construed as incendiary.

The fodder for political incitement in Kenya is the fertile ground mostly of naïve minds that include individuals from informal settlements and rural folks who wallow in the miasma of high illiteracy levels. The ignorance and misinformation of targeted groups for incitement secure the catchment demography for ambitious Kenyan politicians who will not stop at anything for self-actualisation.

Since the onset of the new constitutional dispensation in 2010, no high profile conviction has been secured over charges of incitement. One would be forgiven to think that facilitative statutes that outlaw incitement are peripheral suggestions that have no binding effect on politicians, if their characters can inform important conclusions.

In criminal law, incitement is considered an emerging crime because the criminal objective is mostly not consummated, save for situations where the incitement’s objective is actualised, resulting in abhorrent disruption of peace and violence.

As the date for Kenya’s 2022 elections draws nearer, this is the time to act. The national intelligence community has its work cut out for data gathering and transmitting the same to organs such as the Directorate of Criminal Investigation, the National Cohesion Integration Commission, and the National Police Service and the Director of the Director Public Prosecutions for processing and action.

Javas Bigambo is a lawyer and governance specialist working as the Managing Consultant at Interthoughts Consulting in Nairobi, Kenya.

The Ethnic Factor in the Cog of Nationhood

First Published by the Africa Centre for Ideas on November 27, 2020 (http://www.africacentreforideas.org/policy/the-ethnic-factor-in-the-cog-of-nationhood/)

By Javas Bigambo

Ethnic identity is as old as man’s existence and distinguishes people in their societal groupings. By its nature, ethnicity is a social construct. Its anthropological significance is to strengthen humanity’s social fabric within localities for commerce and other socio-cultural purposes.

When it is explored in this direction, it enables the pursuit of happiness and prosperity for the collective and entrenches the centrality of coexistence. Our East African neighbouring country, Tanzania, exemplifies this; having over 120 ethnic groups, but that multiplicity has never gained prominence to threaten national cohesion through political wear and tear.

Comparatively, such cannot be said of Kenya, which has only 43 ethnic groups. Ethnicity has been weaponized for subjugation and emotional control. This instrumentation of ethnicity in Kenyan politics has consistently paid enormous dividends to the few elite, who use it purely for personal gain. That is precisely where the problem starts, with infinite consequences.

Fragmented nationhood

Nationhood is formed through the collective parchment of ethnicities and their interests. As such, sustained ethnic polarization for political aggrandizement stretches it to its limits.

Severally, ordinary Kenyans, just like politicians, drink from the cup of complacency on ethnic polarization. Expressions of hatred for other ethnic groups, often by those jostling for control of political affairs have been long sustained since Kenya’s independence.

In a bid to cure the long-standing malaise of political parties as self-serving vehicles of their founders, political parties were institutionalized public entities and having them funded by the exchequer based on their numbers in parliament.

Unfortunately, this has so far not saved political parties from ethnic symbolism. Sadly, most political parties are firmly in the grip of their founders, suffering from ‘founder’s syndrome’, and their dominance being relegated to the founder’s area of origin and ethnic extraction.

Ethnically driven politics

The strength of ethnic dominance is always strongly manifested in electioneering periods, more so in times of political succession where the incumbent is not seeking re-election. Politics has always served to embed ethnic hegemony intensely, and politicians incline to tribal chieftaincy for their success. 

Tribal arithmetic seems to always be at play in Kenyan elections. This heightened from 2002 during the Moi succession, where to defeat KANU’s candidate Uhuru Kenyatta, a Kikuyu, Mwai Kibaki a fellow Kikuyu was deemed a fitting equalizer. In 2007, the tribal machinations of 42 against one led to the post-election violence that followed the disputed general election. In 2013, the Kikuyu-Kalenjin equation drove Jubilee Coalition to power, and the same formulae facilitated its retention of power in 2017.

This depicts that ethnic political coalitions are easily the determinants of power play, not political ideology, or related persuasions. This is true of ODM, Wiper Democratic Party, Ford Kenya, MDG, DP, New KANU, and a host of many other parties. Agreeably, even the big major parties owe their strength to the founder or party leader’s area of origin.

In the literary world, Kenya’s prolific literary author and icon Ngugi wa Thiong’o has sustained a campaign aimed at imploring writers to do their works in indigenous languages. While this would help to grow ethnic languages and preserve cultural heritage in texts, it may also serve to ring-fence access to vital information by those who do not understand the other language(s).

Invariably, ethnic conflicts are strongly entrenched due to colonial policies, which have continued to evolve, conflicts of land, and grazing fields especially those that are communally owned, scramble for resources, scarcity of land, political competition, and disputes over political boundaries.

These challenges are old, and all have metamorphosed from the retrogressive colonial policies, which self-serving politicians have continued to incubate, leading to assorted policy inconsistencies. It is even disconcerting that while devolution holds the promise of growth and development at local levels, the boundaries of county governments are mostly ethnic-based.

Averting negative ethnicity

An institution such as the National Cohesion Integration Commission whose primary objective is to provide the mortar and ballast for national interconnection and forestall ethnic biases through policy recommendations, research and recommendation of prosecution of perpetrators, has a monumental task as a conveyor belt to transport Kenyans from negative to positive ethnic considerations.

To avert negative ethnicity, which has eternally remained the engine of polarization, national political leaders need to do more than just simplistic condemnation. They ought to facilitate the required political goodwill for the proper execution of policies and legislation to stem out negative ethnic dalliance.

The narrow path out

The gulf between legislative frameworks and practice has to be eliminated. A vital starting point would be to do away with timeworn inclinations such as including ethnic details in the national identification cards.

Secondly, the tribal factor as a variable during the national census does not add actual value to national planning or resource allocation. It should be discarded.

Upon boundaries review for counties whenever such will happen, it would be proper to reorganize counties’ boundaries to eliminate the present tribal mappings.

Combating negative ethnicity comes down to individual values and strengthened deliberate political goodwill to purge that radical evil that is eternally carcinogenic.

Mr. Bigambo, a political scientist and lawyer, is Managing Consultant at Interthoughts Consulting.

Justice System in Kenya: Positioning the Supreme Court as the House on the Hill

First Published by the Africa Centre for Ideas on November 24, 2020 (http://www.africacentreforideas.org/policy/justice-system-in-kenya-positioning-the-supreme-court-as-the-house-on-the-hill/)

By Javas Bigambo

From a bird’s eye view, the character of a country’s justice system is manifested in the independence, discretion, incorruptibility, and transparency of her judicial officers. They are duty bound to serve the people’s social justice interests, because the Judiciary derives its authority from the people, and exercises it through the courts and tribunals.

The architecture of Kenya’s governance is designed to facilitate separation of powers, as tempered with checks and balances, aimed at achieving balanced national leadership for good governance.

That balance is predicated on the mutual respect and effective operations among the three arms of government, namely, the Executive, Legislature and the Judiciary.

The Judiciary

The Judiciary is the only arm that is headed by a non-elected leader, the Chief Justice (CJ), who is also the President of the Supreme Court of Kenya.

Established under Article 163 of the Constitution as the final arbiter and interpreter of the Constitution, the Supreme Court stands tall as Kenya’s apex court, which also boasts the power of original jurisdiction on presidential petitions under Article 140 of the Constitution.

This superior court has appellate jurisdiction to hear and determine appeals from the Court of Appeal and any other court or tribunal as prescribed by national legislation. Primarily for being the highest court in Kenya, all other courts are bound by its decisions.

Additionally, it renders advisory opinions at the behest of the national government, any state organ, or any county government that requires such guidance in opinion for legislation, or where a lacuna in law necessitates such guidance.

Constitutional democracies are strengthened by strong justice systems that are predicated on independence, integrity, and devoid off political interference. An independent Judiciary guards against the excesses of Executive and the Legislature, the latter may attempt to exert itself through arbitrary legislation that contravene the Constitution. The courts, and most of all the Supreme Court, must not be political impresarios if they have to gain and sustain public confidence.

From this angle, we can conclude that the Judiciary, led by the Supreme Court, is the shield for democracy, for social justice, and for commercial or business confidence among citizens.

New Constitutional dispensation

This has not always been the case in Kenya. In the previous constitutional dispensations before the enactment of the Constitution of Kenya, 2010, the public domain is replete with claims of wanton and brazen interference of the judges’ work and decisions by the Executive, against the transparent interests of social justice.

However, the Constitution introduced vital strands of judicial independence beginning with the establishment of the Judicial Service Commission.

This independent body ensures the independence of the Judiciary and holding it to account. It is responsible for the recruitment of judges through a transparent merit based process and ensuring tenure of service for judges are all constitutionally enforceable. This has encouraged a culture of professionalism and impartiality in judgments, unlike before, where the judges felt indebted to the political appointing authority.

The non-involvement of politicians, including the President, in the recruitment of judges or determination of judicial matters lends wider discretion and liberty to the functioning of the courts. Further, independence is afforded by a balance between constitutional norms, political behavior, and efficacy of judicial officers within the axis of the rule of law’s operation, sustained by ethical militancy.

Restoring the confidence of justice system

Suitability of judicial officers, and effectiveness of the courts remain a going concern and a matter of public interest in democratic societies. Public confidence, bolstered by open, transparent, and meritorious recruitment of judicial officers, together with timeliness and credible court businesses, plays a crucial card in the justice system.

The Supreme Court must be constituted and led by persons of impeccable credentials and character, and that decisions of the courts, must be revered. Impressively, thus far, the operations of Kenya’s Supreme Court have not been warped by or yielded to political pressure. The apex court has observably continued to discharge its duties with impartiality and crispness of jurisprudential thought.

During his tenure as CJ, Justice David Maraga has made demonstrable effort to steer the Judiciary as an independent institution and strengthen the judicial system. Two special events stand out for his legacy.

A brave historical event such as the Supreme Court decision in the 2017 petition against the re-election of Uhuru Kenyatta as President as announced by the Independent Election and Boundaries Commission (IEBC) chagrined the political ruling class, and was settled as an extraordinary landmark judgment on the African continent for its unrivaled chutzpah.

In modern functional democracies, effective electoral dispute resolution is key to preventing violence and ensuring the legitimacy of electoral results. Democracy is strengthened by rules, procedures, and adjudication mechanisms. Electoral dispute resolutions are dependent on a competent judiciary.

The other is when in September 2020, pursuant to six petitions and on the strength of Article 261(7), Maraga advised the President to dissolve parliament for its failure to enact a law providing for two-thirds gender rule. This was a first in Kenya’s history and such bold decisions require an independent judicial space.

These two events, together with the construction of 25 new courthouses and efforts to reduce backlog of cases that initially numbered hundreds of thousands spanning decades, crown Justice Maraga’s legacy profile.

However, beyond the admiration that the Supreme Court and the judiciary has attracted with those two events, they have also attracted scorn and retribution from the political class, and as such judicial independence comes with the curse of political scorn.

Incoming Chief Justice

As CJ Maraga retires in January 2021, his courage and steadfastness, qualifies him as an audacious defender of the Judiciary and a believer in the real separation of powers. The next CJ should keep the flag of public confidence hoisted, and steer a Judiciary that is less intimidated by political forces or interests.

The CJ should take professional ethics and temerity of judicial officers to new levels, by continuing the push for the establishment of the Judiciary Consolidated Fund is in place. Article 173 of the constitution establishes the financial independence of Judiciary by establishing a Judiciary Fund that will be used for administrative expenses and other necessary for the discharge of the functions of Judiciary.

Further, working jointly with the Attorney General, ensure that the witness protection mechanism in Kenya is foolproof and properly financed. Each of the 47 counties should have a witness protection facility and mechanism, granted the requisite discretion.

The other vital expectation to be handled by the next CJ is the proper and effective digitization of the case management system by the Judiciary, especially the e-filing system, which presently remains a nightmare. CJ Maraga has notably set rolling the ball of digitization, but it is encumbered with technical and attendant material challenges that will have to be overcome.

The recent past has seen violation of court decisions. Disregard for the law or court decisions naturally casts dark shadows on good governance. It will be extremely crucial for the next CJ to ensure that court decisions are respected and honoured by all, including the Executive arm of government.

Conceivably, the Judiciary should have a special arm of enforcement security officers, well facilitated, to guarantee enforceability of various court decisions. The Supreme Court, therefore, should be and remain the towering city upon the hill of justice in Kenya.

Mr. Javas Bigambo is a lawyer and political scientist, working as the Managing Consultant at Interthoughts Consulting.