Challenges to the constitutional role of the Kenyan Courts by the Executive Branch did not start this week

[Update: see new editorial from the New York Times: “Kenya on the brink again.

And Gathara’s World: “Kenya’s Future Increasingly Looks Like Its Past”;

Kenya has basically regressed 50 years in the last 7 months and the 2010 constitution’s promise of a democratic renewal is fast fading. If extinguished, history suggests Kenyans may be in for decades of brutal and kleptocratic rule. It will be a steep price for the country to pay for not learning from its past.

The role of the Courts in Kenya is under most conspicuous assault with the Kenyatta government flouting orders to allow the main private television networks back on the air, and ignoring orders to release a high profile political detainee.

In fact, the decision of the Supreme Court to rule against the incumbent President to annul his re-election was unprecedented and extraordinary. It has never warranted complacency.

That one Supreme Court ruling was not a bona fide moment of “Mission Accomplished” any more than the winning of the “yes” vote backed by the United States in the 2010 referendum to approve the new constitution was “Mission Accomplished” for “the reform agenda” that we talked about back in those first years of this decade.

Kenyans will remember the beginning of the Obama Administration when Ambassador Ranneberger was a born-again reformer after getting caught out selling Kenyans on accepting the ECK’s alleged “results” as announced (and subsequently disowned) by Samuel Kivuitu in December 2007. As I learned through the Freedom of Information Act later, Ranneberger had informed Washington in his pre-election cables that the Kenyan courts at that time were not credible.

See quotes from Ranneberger’s cable of December 24, 2007 from my post “Lessons from the 2007 Elections and the new FOIA cables–part two“:

There is no credible mechanism to challenge the results, hence likely recourse to the streets if the result is questionable.  The courts are both inefficient and corrupt.

(For my summary of the 2007 election, see The Debacle of 2007: How Kenyan Politics Was Frozen and an Election Stolen With US Connivance” in The Elephant from June.)

After those December 30, 2007 announced “results” were questioned by other observers and not accepted we withdrew our pre-mature congratulations to Kibaki and shifted to support “power sharing.” We helped support negotiations that “settled” the violence among the pols and created openings for ODM politicians within Kibaki’s second administration, along with providing for the Truth, Justice and Reconciliation Commission and the revival of the stalled constitutional reform promised voters by NARC in 2002.

After that experience of 2007-08, when the absence of credible independent courts was so sorely felt, the court system was a recognized need for the new constitution.

The new constitution eventually passed in the 2010 referendum against a spirited campaign led by William Ruto created a new Supreme Court and spurred new hope for a cleaner, stronger judiciary that could perhaps stand up to the cartels and politicians and maybe even a president.

But the “reform agenda” held our focus for only so long, and I don’t think we converted many unfaithful politicians. I never got the impression we were too enthused about the TJRC process, but one way or the other we certainly seem to have completely forgotten about that part of the 2008 National Accord since the Uhuruto regime came in power and made it clear that nothing is to come of the (expurgated) gathered evidence of the wrongs of recent decades.

From the “reform agenda” days, which corrupt Kenyan politician ever got prosecuted by the Kenyan authorities based on Ranneberger’s dossiers? Which corrupt institutions were liquidated to benefit the public? Impunity has proved untouchable and, thus corruption has only gotten worse. The new innovation is that if you get caught and pushed out of the Executive Branch you might get lucky enough to be sponsored in a governor’s race. The dossiers pile up and up.

Meanwhile, the notion of an independent judiciary in Kenya is a fledgling work-in-process. Since September 1 signs have been more negative than positive. Starting with the infamous wakora slurs from the President himself against the Judges, culminating with the inability of the Supreme Court to muster a quorum to hear the challenge to the IEBC holding the “fresh election” on October 26 (after the shooting of the Deputy Chief Justice’s driver in her car), there are questions whether September 1 was a “one off” event. Not one the ruling party intends to see metastasize into an inflection point toward reform and away from Kenya’s historical norms under “Kenyatta and Moi’s KANU especially–the “home” of Uhuru Kenyatta and William Ruto together for most of their years.

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