Kenyan President Uhuru Kenyatta’s slow clash over the “supremacy of the country” over the supremacy of the constitution is once again being revealed. This time the battle was intensified by the President’s attempt to usurp the powers of the Judicial Service Commission (JSC) to elect judges and judicial officers of the country’s courts.
For two years, after insisting on secret negative findings against them by the intelligence services, Kenya refused to formally appoint 41 persons selected by the OJSC to hold various positions, including in the Court of Appeal. This contradicts the constitution, which does not give him any discretion in this matter, բազմաթիվ many court decisions confirm it. This week he partially satisfied, appointing 34 of them, but fragilely continuing to block the six (one died in the meantime).
His stance was strongly condemned by civil society groups, parliamentarians and even former Chief Justice Willy Mutunga, who wrote a scathing letter accusing Kenyatta of “exercising the power of captivity” and betraying her official oath. But this is not the first time Kenya has dealt with the judiciary, which, especially since the constitution was published 11 years ago, has become much more determined to demand the rule of law from the political class.
For much of Kenya’s history, the independence of the judiciary has been a myth. In colonial times, judges served with the pleasure of the crown; they had no independence. As Mutunga noted in 2013, they were “essentially a civil service for the colonial administration; they seldom thought of resisting it.”
Although the Constitution protected judges in 1963 under the guise of independence, deliberately isolating them from the executive branch, it did not conform to the entrenched habits of judicial subjugation that were cultivated and brought up under the colony.
For the next 47 years, with a few notable exceptions, the courts remained silent, not merely as if they were willing accomplices when subsequent presidents and their allies broke all constitutional guarantees and restrictions. The judiciary has become more than just a department of the Prosecutor General’s Office with a severely underfunded lack of staff.
In a well-known case in 1989, a judge ruled that the entire draft law was ineffective, effectively depriving all Kenyans of their constitutional protection because the Chief Justice had not established rules of procedure for its implementation by the Supreme Court.
Perhaps the lowest point for the judiciary came in the wake of the 2007 presidential election, when a lack of confidence in its independence showed the opposition taking to the streets, killing more than 1,300 people and displacing hundreds. to the գրեթե almost collapse of the country. The post-violence independent judiciary has been a major issue for reformers who have been fighting for constitutional and judicial reform for more than 25 years.
In many ways, 2010 The constitution restored the independence that was proclaimed during the years of independence, abolished the destructive changes that the political class had brought to the Kenyans. The Constitution of Independence largely failed because it was imposed by the British, the political class that believed it did not believe it, and after almost a century of colonial repression, there were few institutions that could defend it.
On the contrary, in 2010 The constitution was the result of decades of local struggle, of broad national consultation, and had an army of civil society activists, lawyers, and ordinary Kenyans ready to defend it. Most importantly, freeing itself from the shackles of the executive, the judiciary is rapidly developing its backbone, asserting its role as exercising constitutional power.
However, this was not a direct evolution. Some interpretations of the constitution by the judiciary seem to date back to the days before the assassination of Kenyan rulers. The 2013 rulings, which essentially said a constitutional ban on constitutional reform did not require people accused of crimes against humanity to demand that their names be cleared by the International Criminal Court before being nominated for the country’s top post, later confirmed President Kenyatta’s questionable The election և His deputy William Ruto, with his widely held judgment, frightened many Kenyans that the future could be a repetition of the past.
The courts have also disputed the colonial-era harshness of sexual diversity by vaguely equating homosexuality with marriage, arguing that by accepting the right to marry the opposite sex, the constitution somehow prohibits homosexuality.
However, in general, the judiciary has found some ground, եց gained a lot of trust from Kenyans on numerous occasions, violating unconstitutional legislation, and defending rules ahead of the 2017 election that will make it easier for citizens to detect fraud.
Undoubtedly, the crucial moment came with the cancellation of that year’s presidential election, which was previously unbelievable. That prompted Kenyatta to make “terrible visits” again, and two months after the Deputy Attorney General was attacked, the Supreme Court was unable to convene a quorum to hear the case, which will challenge the re-election. was declared invalid.
Despite winning a second term, Kenya continued its war against the judiciary, collaborating with its former rival Raila Odinda to launch the Build Bridges initiative, a covert attempt to turn back the clock by changing the constitution to re-establish the most powerful executive branch. : As a result of the initiative, a bill was created proposing several constitutional amendments.
As in the 1960s, the legislature was effectively neutralized today as an inspection by the executive, and the bill fell to the judiciary to block it. In May, in another landmark decision, the Supreme Court declared the enterprise unconstitutional.
In a decision that turned the painful story of how the independence constitution was distorted through a process of change, of how Kenyans are fighting to repeal it, judges believe that a breach of the basic structure of the Constitution can only be done by the Constituent Assembly, which involved in developing a new one.
Once again, that decision has angered and frustrated Kenyatta և’s supporters և by prompt action. Two of the judges he blocked from going to the appellate court were on the bench of the five judges who made the verdict.
In a horrific speech in early June, the President declared that the goal of human rights and autonomy was to cooperate with the government, and that the exercise of independence by the judiciary was a threat to the same constitution that granted independence.
As the judiciary now prepares to hear the government’s decision against the verdict in late June, the question remains whether the judges will once again obey the wishes of the executive, or whether they will have the courage to continue defending the constitution and their independence. The Kenyans will carefully follow the latter’s hope.
The views expressed in this article are those of the author and do not necessarily reflect the views of Al Jazeera.