The judiciary and the long struggle to defend the Kenyan constitution | Kenya

The simmering conflict between the Kenyan President Uhuru Kenyatta and the country’s judiciary over the supremacy of the constitution is again evident. This time the battle was sparked by the President’s attempt to usurp the powers of the Judicial Service Commission (JSC) to select judges and bailiffs for the country’s courts.

For two years, Kenyatta has refused to formally appoint 41 JSC-selected individuals to fill various positions, including the Court of Appeals. This contradicts the constitution, which leaves him no discretion, and numerous court judgments that confirm this. That week he partially complied, appointing 34 of them, but irritably blocked six others (one had since died).

His stance was strongly condemned by civil society groups, parliamentarians and even former Chief Justice Willy Mutunga, who in a damning letter accused Kenyatta of “being adorned in the pettiness of the exercise of power” and of having abused his official oath. But it is not the first time that Kenyatta has come into conflict with the judiciary, which has demanded compliance with the law from the political class, especially since the constitution was promulgated eleven years ago.

The independence of the judiciary has been a myth for much of Kenya’s history. In colonial times, judges served the Crown for pleasure and lacked independence. As Mutunga noted in 2013, they were essentially “a public service committed to colonial administration and very rarely interested in facing it”.

Although the constitution protected judges during independence in 1963 and deliberately sealed them off from executive power, it did not stand up to the ingrained habits of judicial submission to the tyranny of the executive that had been bred and nurtured under colonialism.

For the next 47 years, with a few notable exceptions, the courts were not just silent but seemingly willing accomplices as successive presidents and their cronies tore down all constitutional guarantees and restrictions. The judiciary became little more than a division of the Attorney General, severely underfunded and understaffed.

In a prominent case in 1989, a judge ruled the entire Basic Law ineffective and unenforceable, essentially stripping all Kenyans of their constitutional protection because the Chief Justice failed to establish procedural rules for enforcement by the High Court.

Perhaps the lowest point for the judiciary was during the 2007 presidential election dispute when the opposition took to the streets for a lack of confidence in their independence, killing over 1,300 people and displacing hundreds of thousands and the near- Collapse of the country. After the acts of violence, an independent judiciary was the top priority of the reformers, who had fought for constitutional and judicial reform for more than 25 years.

In many ways, the 2010 constitution was a rewrite of the constitution proclaimed at independence, undoing many of the ruinous changes that the political class had imposed on Kenyans. The independence constitution failed mainly because it was imposed by the British, the political class that received it did not believe in it, and after nearly a century of colonial repression there were few institutions to defend it.

In contrast, the 2010 Constitution was the result of decades of local struggles, extensive national consultations, and had an army of civil society activists, lawyers, and ordinary Kenyans ready to stand up for it. Most importantly, the judiciary, freed from the shackles of the executive, quickly develops a backbone and asserts its role in enforcing constitutional law.

It wasn’t a simple evolutionary march, however. Some of the judiciary’s interpretations of the constitution seem like a throwback to the earlier days of kotau before the rulers of Kenya. 2013 rulings essentially stating that the constitutional prohibition of integrity would not oblige individuals charged with crimes against humanity before the International Criminal Court to erase their names before running for the highest office in the country, and the subsequently confirmed the dubious election of President Kenyatta and his deputy William Ruto in a far-reaching ruling made many Kenyans fear that the future might be a repetition of the past.

The courts have also controversially upheld the colonial era restrictions on sexual diversity, inexplicably equating homosexual sex with marriage, and suggesting that the Constitution somehow prohibits same-sex relationships by recognizing the right to marry someone of the opposite sex.

In essence, however, the judiciary appears to have gained a foothold and gained some trust from Kenyans by rejecting unconstitutional laws on numerous occasions and affirming rules in the run-up to the 2017 elections that would make it easier for citizens to spot fraud.

The highlight was undoubtedly the cancellation of the presidential election that year, which was previously unthinkable. This resulted in heavy threats from Kenyatta of a “re-election” and two months later, following an attack on the vice chairman of the Supreme Court, the Supreme Court was unable to raise a quorum to hear a case of re-election issues that had led to it being contested the cancellation was fixed.

Despite “winning” his second term in office, Kenyatta has continued his war on justice and the constitution, teaming up with former rival Raila Odinga to create the Building Bridges Initiative – a thinly disguised attempt to put the clock through a Amendment to reverse the constitution to restore an all-powerful executive. The initiative resulted in a bill that included several constitutional amendments.

As in the 1960s, the legislature was now practically castrated as control of the executive, and it was up to the judiciary to stop the bill. In May, the High Court ruled the company unconstitutional in another historic judgment.

In a ruling that recapitulated the sad story of the mutilation of the Independence Constitution by the amendment process and Kenyans struggled to reverse it, the judges found that manipulation of the basic structure of the constitution can only be done by a constituent assembly, which involved all Kenyans in working out a new one.

Once again, the verdict has sparked anger, disappointment and retaliation among Kenyatta and his followers. Two of the judges, whose appeal to the appellate court he blocked, were part of the five-person bench that passed the verdict.

In a horrific speech in early June, the President stated that the purpose of human rights and autonomy was to work with the government and the exercise of independence through the judiciary threatened the same constitution that granted independence.

As the judiciary prepares for the government’s appeal against the verdict in late June, the question remains whether the judges will return to the will of the executive or have the courage to continue defending the Constitution and their own independence. Kenyans will be vigilant and hope for the latter.

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

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