When Prime Minister Raila Odinga made remarks that were interpreted as demeaning to the judiciary, Chief Justice Dr Willy Mutunga didn’t pull his punches and soon the Premier was apologising.
Driven by the new-found freedom granted to them by the new constitution, judges have been giving verdicts that are more often than not on the collision course with the executive arm of the government.
While some of these rulings have been welcomed with a sigh of relief for the tensions they have diffused, others have attracted the wrath of politicians and the man on the street.
“The court that is telling us elections could be done in December or March, what sort of court is that,” Prime Minister Raila Odinga was quoted as saying during a political rally in Kisii.
“This is a Kangaroo court,” he fumed.
Biting, not baring fangs
This statement triggered a barrage of condemnation with the Dr Mutunga terming the PM’s utterances an act of impunity. But this incident is just one of the many where the judiciary has bitten as opposed to merely baring its fangs as was the case in the past.
From ruling that Sudanese President Hassan Omar-al Bashir should be arrested if he visited Kenya to throwing political game plans into disarray by laying a basis for a multiple of choices of election dates, the Kenyan courts are bubbling with confidence like never before.
“The bold decisions by the judges in recent times are an indicator that the independence of the judiciary is not only in written form but also in practice,” explains former Justice and Constitutional Affairs Minister Mutula Kilonzo, who is now heading the education portfolio.
“This shows that the judiciary is not only independent but also its there to serve the interest of the people regardless of their class or station in life”.
The minister, who is also a senior advocate, cites the Prime Minister’s apology to the Chief Justice as a historic case in Africa where the executive doesn’t engage in niceties.
“Speaking as an advocate, I am very impressed to see judges going against populist feelings to implement elements of the constitution like giving bond to suspects of murder,” says Mr Kilonzo.
“This coupled with the decision on the election date is an indicator that the change Kenyans have been fighting for over the decades is finally here with us”.
Mr Kilonzo says he stopped his push for a December election date because the March date was decided by the High Court, for which he has a lot of faith and respect.
“When a judiciary is independent it means it is pronouncing its judgments as they are supposed to be in law, a system which many Kenyans, especially politicians from the old order, were not used to,” he says.
“For the first time the politician is realising that the court will not do things to please him as it was in the past hence the spirited opposition to bold judicial decisions,” says Mr Kilonzo.
According to the minister, two philosophies govern independent judiciaries across the world — positivism and activism. While in positivism judges interpret the law as it is written, in activism the interpretation is done in a pro-people manner.
This means that while the letter of the law might say that elections should be held in August, the judges factored in other aspects necessary to advance the cause of justice such as the National Accord that pulled Kenya out the path to a civil war after the disputed 2007 presidential polls, the life of parliament and national cohesion among other factors.
According to Mr Kilonzo the drafters of the new constitution steered the country towards judicial activism as stipulated in a section of the constitution that says “Judicial authority is derived from the people…”
In this case, judges are obliged to base their decisions not only on the letter of the law but also on the prevailing circumstances and national interest. This explains why many judgments made by the courts under the new constitution have been unpredictable.
Among the first of these rulings was Mr Justice Daniel Musinga’s nullification of presidential appointments for the offices of the Chief Justice, Attorney General, Director of Public Prosecutions and the Controller of Budget.
In making the ruling Justice Musinga observed that although there were some consultations between the two principles it was apparent that there was no consensus.
Although consensus or agreement between the two principals is not a constitutional requirement, the Kenya Law Reports writes, “the values and principles stated under Article 10 of the Constitution and the spirit of the National Accord and Reconciliation Act ought to have been borne in mind in making the nominations”.
Activism, according to Mr Kilonzo, is a progressive attitude that only evokes opposition among anti-reformists who would prefer not to see a new Kenya.
“Activism from a judicial sense refers to the case of a judge who, when presented with a case where a village chief went against the law to save a situation, he acknowledges the law was contravened but the chief was empowered to do so in such situations, a view adopted by the bench ruling on the election date,” says the Cabinet minister.
The Nancy Baraza case
“But on the other hand, a positivist judge will say the chief has broken the law hence he should be punished, without considering other factors”.
Another litmus test for the judiciary has been the case of Deputy Chief Justice Nancy Makokha Baraza. After she was alleged to have threatened a security guard at the Village Market, Nairobi, the calls for her resignation prompted Dr Mutunga to convene the Judicial Service Commission (JSC).
The recommendations for her immediate suspension and the setting up of a tribunal to investigate her conduct were swiftly implemented.
But determined to go down fighting, the Deputy Chief Justice moved to court to challenge the legality of the tribunal, in which the High Court issued temporary orders restraining the tribunal from investigating her until the petition was determined.
However, the same court has since determined that Ms Baraza, a former chair of Federation of Women Lawyers of Kenya (FIDA), must face the panel formed to investigate her.
“Having considered all the grounds raised by the petitioner and the response by the respondents, we think that the issue raised cannot entitle the petitioner to the orders sought,” the three-judge bench comprising of Justices Mohammed Warsame, Hellen Omondi and George Odunga said, adding that the JSC worked within its legal mandate in recommending the formation of the tribunal.
The tribunal is yet to begin its sittings.
Like Justice Nicholas Ombija, who ordered that Sudan President Omar Bashir should be arrested if set foot in Kenya, High Court judge Justice Isaac Lenaola has been in the centre of several rulings with far reaching implications.
After heading the bench that ruled that elections should be held in March 2013 unless the two principals agreed to dissolve the coalition in writing, the judge issued an order barring the public discussion on the presidential candidature of Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto until a case before him was heard and determined.
The High Court caused yet another upset when a petition lodged against the vetting of judges was granted liberty and the process halted awaiting ruling.
The Constitutional and Human Rights division of the High Court has since dismissed the petition on the grounds that “the Vetting of Judges and Magistrates Act, 2011 was sanctioned by the new Constitution and its provisions did not violate the doctrines of separation of powers and the independence of the judiciary and that it did not threaten the constitutional rights of judges and magistrates”.
Other instances where the courts apparently went against the public tide includes the postponement of the Kamukunji by-election in the eleventh hour millions in the campaigns.
Mwalimu Mati, the Mars Group Chief Executive Officer, says that the fact that courts have become bold enough to make unpopular decisions shows that the legal regime is gradually getting a life of its own.
“The same atmosphere was experienced in South Africa in 1994 when the new constitution came in force,” says Mati.
“While I agree that some decisions made by the courts are unpopular, it is better and safer that the constitutional implementation process be in the hands of the judiciary rather than in the courts of popular opinion,” he says.
“After all what is popular today might be unpopular tomorrow and vice versa”.
However Mr Mati opines that the success of the whole process will be hinged on the quality of judges, business he says is being taken care of by the ongoing process of vetting judges and magistrates.
“Although I strongly support the recent spate of bold decisions by the courts I am disappointed by the judges’ inability to put their foot down in implementing their decisions,” he laments, quoting a warrant of arrest against Philip Moi, the son of a former President Daniel arap Moi that was not implement despite the judge making a ruling.
“This should not be the case since a judgment without execution is of no consequence”.