This August marks the fifth year of implementing the Constitution of Kenya, 2010, or the new constitution. This Constitution is widely recognised as progressive and radical. It does things many constitutions fail to do.
It places the people of Kenya at the centre of power in all respects and requires that the people be seen as the source of its power.
The Constitution does not vest executive power in any national institution. It disperses this power widely to prevent abuse. It only requires the President to exercise power on behalf of the people. It does not vest executive power in the presidency. But it vests executive power in the county government.
The Constitution has constructed, for itself, burglar proof doors and windows to prevent presidents, governors, other elected officials, and other persons from amending or using it to further their self interests. They did this with ease in the past.
The progressive character of the constitution is a subject of attack by influential individuals who simply used to buy the law rather than observe the law. These feel offended by the 2010 Constitution.
They want it changed. Some of the lawmakers in fact are on record observing that it the law does not work for them, they are ready to change it. And they make the changes they want.
Judiciary is the most transformative element of the Constitution
An institution that has remained faithful to the constitution is the Judiciary. What has happened within and regarding the Judiciary since May 2011 when a new Chief Justice was publicly recruited and vetted has had impact that testifies to the progressive nature of the Constitution.
In the past, the Judiciary was simply a colonial edifice in structure and faith. The court building was colonial and the judges had colonial attitude and behaviour.
You could not speak to judges. You could touch them – they were angels of justice; they were non-human living among human. They enjoyed “summer holidays” in Kenya when every month is like summer. This tradition of summer holidays is, however, followed today.
Courts along the railway line
All the courts were constructed along the railway line. Every major town along the railway line had a court station. This was the pattern from Mombasa to Kisumu. There was one reason for this: the courts were meant to give justice to the Mzungu in the White Highlands where the railway line passed.
The courts were not constructed for Africans. They were constructed for the settlers, the Mzungu. The African experienced the courts when being prosecuted as criminals for doing this or that against the Mzungu settler. The African was always told to get justice from the council of elders or get lost.
This was never corrected since 1963. The courts remained along the railway. Successive post-independence governments constructed very few courts. As a result, there were many parts of the country that remained with limited access to justice.
The Constitution has reduced the distance from justice
The 2010 Constitution has altered all this. Although the Constitution has not devolved the Judiciary, the judiciary is deliberately devolving the construction of courts to the counties to address the crimes of the past.
It is addressing an historical injustice that is rarely talked about. The Judiciary appears to be eager to move and establish new courts away from the railway line to enhance access.
If one looks at a map showing the establishment of courts before and after 2011, there will be green to represent “counties of privilege”, red/orange for “counties of neglect”, while the un-shaded counties are those yet to be reached by courts.
The “counties of privilege” were the old railway line station centres. They were few and remained so until the passing of the new constitution. They remained very close to one another in terms of distance. If you had some money, you could choose where to go. If you were poor, you were stuck.
The counties of neglect were many. They were the rest of Kenya. If you were in Marsabit, the nearest station for justice was Meru. Distance to the centre of justice was a problem. If you were in Turkana, Trans Nzoia was the nearest point of access to the High Court.
With this challenge of geography, people turned to violence as a way of resolving their disputes. Without any point of reference for justice, they would kill if they felt aggrieved.
Localised violence as a result of poor access to justice has been a feature of some of these communities for a while. The Constitution and the Judiciary have corrected this problem of geography.
Since 2012, there has been proliferation of courts in many counties that were neglected in the past. There are courts now in Turkana, Marsabit, Garissa, Homa Bay, Murang’a, Bomet and Laikipia, among others.
The Constitution and its requirement to vest power in the Judiciary for exercise on behalf of the people has altered the distance of access to justice in a clear manner. The Constitution itself is “anti-colonial” and, therefore, seeks to revolutionalise how development is implemented on behalf of the people. It is moving the courts away from the railway line.
Rising and falling trust in Judiciary
However, there is something negative happening with regard to people’s trust in the Judiciary and the courts. Confidence is coasting south.
Survey findings from the early 2008 are telling. In the middle of 2008, after the post-election violence, only one-third of Kenyans had confidence in the Judiciary.
In fact, the Judiciary and the police shared similar ratings. The police were rated as poorly or even slightly better than the Judiciary. But with the coming of a new Constitution things changed.
Dr Willy Mutunga applied for the job of Chief Justice and President of the Supreme Court. He was interviewed, vetted and recruited in the glaring eyes of the public and on live television.
Those interviewing and vetting him were quite personal. It was as if they were checking the man of mettle in him.
This approach spread to apply to the recruitment of new judges too. Those with dirty pasts were found out and could not pass muster the panel.
Public rating on the performance of the Judiciary increased. People’s confidence increased dramatically. At the end of the 2012, the public believed the Judiciary was the most reformed public institution.
The ratings went down again after the Supreme Court ruling on the Presidential Election Petition in 2013. From then on, the rating on confidence and trust in the Judiciary has been coasting down a long hill.
By April 2015, only half of the population were satisfied with the performance of the Judiciary. Interestingly, the pattern of this satisfaction reflects Kenya’s ethno-political divisions. The Cord dominated areas have less confidence in the Judiciary while Jubilee strongholds are confident and satisfied with the performance.
The Judiciary can regain people’s lost trust and confidence by making bold decisions on transgressions by the Executive.
Acting tough on the rich, the powerful, and influential individuals who are slowly “buying the making of the laws” or amending them if they find them harsh to abide will redeem its image.
The fight against corruption presents a good opportunity in this respect. If the courts can bite the flesh of individuals in high-level corruption, people will begin to trust the courts as having a life of their own and as contributing to transformation of Kenya.
Prof. Karuti Kanyinga is based at the Institute for Development, University of Nairobi, [email protected]