How drafters of 2010 Constitution ensured MPs won’t abuse it for political expediency

“The tragedy of Kenya’s new Constitution,” a Senator said to me recently, “is that only those who voted ‘No’ had actually read it before the referendum.”

This insight explains why so many politicians who voted ‘Yes’ in 2010 feel betrayed by how hard the Constitution has made their lives.

Flailing around for enemies many of them now see the Constitution and judges who interpret it as their enemies. They seem to have a point though: the Judiciary has recently outlawed important portions of the new security laws; ordered the National Assembly to work with the Senate on the annual division of revenue bill and even condemned the famous Constituency Development Fund (CDF) as unconstitutional.

They are wrong to blame the courts or the Constitution. The problem is that politics in Kenya has become judicialised, a concept I will explain shortly.

Since 2010, many political issues in Kenya have, inevitably, become legal questions to be resolved by the courts. There are three reasons for this. First, the Constitution is difficult to amend. Parliament may make some amendments but changes to most basic articles must be ratified by a referendum.

POLITICAL CHANGE
Second, the courts don’t just have wider powers to interpret the Constitution, they are also more accessible, financially, for many citizens. By making the amendments harder and access to courts cheaper, the Constitution has substituted the court for Parliament as the preferred site for political change.

Third, the world over, issues once treated as political have been judicialised, meaning they are, increasingly, being resolved by courts or legal tribunals.

First, why do hard-to-amend constitutions lead to judicicialisation of politics? It is because they make change through amendment expensive and uncertain and, comparatively, change by interpretation certain and inexpensive. Easy: the price theory predicts that demand for amendments will go down as the demand for interpretation of the constitution goes up.

Let us illustrate this with our constitutional history. Kenya became independent in 1963 on a Constitution of checks and balances. Horizontally, powers were balanced across the executive, the judiciary and the legislature. Vertically, powers were divided or shared between national government and regional governments.

The power to amend lay with parliament but the numerical thresholds were as high as 90 per cent in the Senate and 75 per cent in the National Assembly.

To overcome this problem, politicians reduced these thresholds to 65 per cent and then used their new powers to abolish checks and balances; create an imperial presidency, weaken the bill of rights and remove regional governments.

By 1992, parliamentarians had enacted a massive 24 amendments, an average of one amendment every 15 months. In short, once amending the Constitution became easy, political controversies were settled by changing it such that instead of regulating politics, the Constitution became a weapon in political struggle, as Prof Githu Muigai once lamented.

The stand-out example of how cavalier amendments became is the 1975 ‘Ngei amendment.’ Paul Ngei, President Kenyatta’s fellow detainee at Kapenguria, won the 1974 election in Kangundo Constituency but was subsequently found guilty of an election offence. This meant he was barred from running in the coming by-election.

Kenyatta gave Attorney General Charles Njonjo 12 hours to draft an amendment to widen the prerogative of mercy to election offences so that the president could pardon Ngei. Parliament, then about to go on break, was warned that the recess was contingent on passing the amendment.

To speed things up, the guillotine procedure was adopted and the bill passed three readings in an afternoon. Kenyatta then used his new powers retrospectively, pardoning an offence that pre-dated amendment. In fact, Ngei was pardoned even before the amendment formally in force.

By 2010, then, Kenyans were thoroughly chastened by this and similar experiences. They not only made the Constitution much harder to amend but also mandated that critical changes be ratified by referendum.

In addition, since civil rights had been weakened by lack of access to the court and complex procedures , the new constitution made access cheaper and obliged courts to accept even lawsuits that had been filed unprocedurally.

Therein lies the clue to increased judicialisation of politics: If a constitution is difficult to amend – as Kenya’s is- and access to court is cheap or easy – as it is in Kenya today- contending parties to a political controversy will first seek a judicial interpretation that favours their view of the matter before they consider invoking the amending powers of Parliament.

But on the downside, judicialisation has two consequences, both of which are now easy to see in Kenya. One, as soon as politicians understand the courts are important political arenas, they will fight to usurp or control the power to appoint judges. Two, judicialisation gives inordinate power to those who are adept at playing the courts, namely lawyers.

Let’s first look at how politicians respond when courts become the obvious arenas for politics. Those who doubt that politicians will try to influence appointment of judges need look no further than President Uhuru Kenyatta’s recent nomination of Ms Winnie Guchu and Mr Kipng’etich arap Korir to the Judicial Service Commission.

Though Parliament is yet to confirm these nominations, the thinking of the Jubilee government is clear: it needs two safe pairs of hands in the Judicial Service Commission for the next round of judicial appointments, especially in the Supreme Court, which has powers to decide presidential petitions.

Three Supreme Court positions- Dr Willy Mutunga’s, Justice’s Kalpana Rawal and Justice Philip Tunoi’s- are soon to be filled and it would be useful to have ‘politically’ reliable replacements. But the Guchu and Korir controversy is not an aberration, it is merely the start of a process that we must now learn to live with.

Even in the USA- from where so much of our constitution is borrowed- similar forces are usually at play. A particularly good example is President Franklin Delano Roosevelt’s famed scheme to pack the Supreme Court in 1937.

Roosevelt swept to power in 1932 on a promise to pull Americans out of the misery wrought by the Great Depression. By 1932, 5,000 banks had collapsed, unemployment stood at 25 per cent and national income was half the 1929 level.

Central to his plan were far-reaching legislative changes and a fundamental re-organisation of the federal government. Soon, though, Roosevelt’s New Deal laws were challenged, all the way to the Supreme Court.

Four judges in that court, dubbed the Four Horsemen of the Apocalypse by their detractors- Justices Butler, McReynolds, Sutherland, and Van Devanter- were conservative and hostile to government intervention in the economy.

In short order, the court ruled most New Deal laws unconstitutional. On one day alone, “Black Monday,” May 27, 1935, three cases- A.L.A. Schechter Poultry Corp. v. United States; Louisville Joint Stock Land Bank v. Radford and Humphrey’s Executor v. United States – virtually undid the whole scaffolding of the New deal.

A frustrated Roosevelt invented a scheme to bring the court to heel: for every judge who turned 70 and refused to retire- such as the Four Horsemen- Roosevelt would appoint a younger judge, ostensibly to lighten the old men’s workload, but in truth to bring on board judges friendlier to his economic programme. The plan quickly unraveled. In part this was a result of Roosevelt’s cack-handed handling of congressional leaders.

Most important though, the Supreme Court had, unbidden, suddenly changed tack and affirmed a law regulating the minimum wage in the case of West Coast Hotel v. Parrish.

This leads naturally to the second point: once courts become arenas for politics, those who can play the system, principally lawyers, become influential and powerful. America does not just have the largest number of lawyers in the world, it is a country ruled by them.

At least 25 of America’s 44 presidents, or nearly two thirds, have been lawyers. As courts in Kenya grow in political influence, so too will lawyers. But the fact is that politics that is mediated by courts and lawyers will lose its popular edge and emotional appeal. The result will be an inevitable rise in political cynicism and hostility to the ‘litigating urban’ elites.

GLOBAL TREND
Is there a happy conclusion to this story? Can judicialisation of politics be arrested? It is probably too late. This is now a global trend: everywhere critical political questions have morphed into legal questions.

Examples abound: the 2000 American presidential election was settled by the Supreme Court; The Israel/Palestine wall of separation has been ruled illegal by the International Court of Justice; the transition justice process in South Africa removed human rights abuses from political negotiations and made the transition from apartheid possible.

Back home, the transfer of the post-election crisis from Kenya to the International Criminal Court was part of the same trend. This shift marks two crucial changes in world politics: growing elite distrust of popular processes and a trend towards de-politicisation of emotionally charged subjects by confining them in formal and manageable judicial processes. If you don’t think that it works, go figure why there was no post-election violence in 2013.

Mr Maina is a constitutional lawyer
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