Old arguments used to restrict freedoms remain intact

Sunday January 10 2016

Jubilee MPs led by Majority Leader Aden Duale

Jubilee MPs led by Majority Leader Aden Duale address a press conference on January 6, 2015. Another dominant reason for the merger of the Jubilee parties has to do with advancing the personal career of the President in power. PHOTO | SALATON NJAU | NATION MEDIA GROUP 

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Current political trends in the country recall three developments which occurred in 1988 and which had a significant effect on the country’s independent institutions.

First, in February the ruling party, Kanu, which was the only lawful political party in the country after a 1982 constitutional amendment making it the sole party in Kenya, conceived a new system for party primary elections.

The mlolongo or queue system involved party members lining up behind photographs of their preferred candidate with candidates garnering 75 per cent of the primaries vote being declared elected without having to face the regular election.

The country had a population of 20 million people of whom only four million were Kanu members.

This meant that the rest of the population, who were not Kanu members, could not vote.

The mlolongo elections were widely criticised and the results were challenged in court.

However, the line of argument adopted in court in deciding these cases was that the courts could not question the internal affairs of the ruling party.

In the same year, a High Court Judge, Derek Schofield, was removed from office after he contested the power of the Chief Justice to transfer him from Nairobi to Meru as a disciplinary measure because the political establishment disapproved of the manner in which he had handled a case before him.

The Head of Civil Service, Joseph arap Letting, defended the dismissal.

The publicity that the incident attracted drew the attention of the Kanu leadership to the legal protection enjoyed by judges, and which they regarded as a challenge on the authority of the President. They would soon seek to remove the protection.

Six months later, Parliament enacted a constitutional amendment removing the security of tenure of all judges, the Attorney-General and the Controller and Auditor- General.

The amendment bill was published on a Thursday and then rushed through all the stages within two hours on the following Tuesday.

No public discussion preceded these major changes which were a reaction to the temerity that Justice Schofield had shown in challenging his transfer to Meru.

In the parliamentary debate, Attorney-General Matthew Muli remarked that the security of tenure for judges was inconsistent with the powers of the President to fill public positions and dismiss persons from office.

He pronounced himself happy to leave his own job security in the hands of the President.

Vice-President Josephat Karanja argued that constitutional security of tenure provisions were “anachronistic and colonial cobwebs”.

The chair of the Law Society, Joe Okwach, wrote to the President expressing concern over the amendments which he termed as striking at “the very soul of the ability of a judge to perform his function independently, without fear or favour, affection or ill will.”

In response, Karanja termed the Society as “misinformed to a point of becoming irrelevant” and wondered how the Society would claim it supported the President, and yet question his decisions.


The result of the amendment was that it sent the message that the President was solely in charge of the country and any checks on his power would not be tolerated.

Two years later, in 1990, after much agitation, the security of tenure was restored through a further constitutional amendment.

Going back to this recent history will, hopefully, help to frame issues that have recently arisen on the relationship between the President and the Judiciary.

A law that was passed as part of an omnibus bill which the National Assembly approved in December and which proposes to change the methods by which the Chief Justice and the Deputy Chief Justice are to be appointed, has become the subject of some controversy.

There is also a dispute over a further amendment to the Public Audit Act which the opposition coalition, Cord, claims to be an infringement on the Constitution. There is ongoing litigation on both matters.

Outside the law making process, as the country prepares for elections in 2017, there have been discussions about the merger of the constituent parties in the Jubilee coalition.

The justification for the suggested merger of the Jubilee parties is that this is meant to aid national cohesion and bring the people together.

These justifications are very similar to those that were provided to justify the constitutional changes that made Kenya a one-party state in 1982.

While moving the constitutional amendment debate in Parliament, the Minister for Constitutional Affairs, Charles Njonjo, said that “all we are asking Kenyans for is a party under which not only did we attain independence but also brought reconciliation to the nation.”

Another dominant reason for the merger of the Jubilee parties has to do with advancing the personal career of the President in power.

Jubilee leaders have said that they are seeking a merger so as to improve the chances of President Kenyatta’s re-election in 2017.

Again, this was a major reason for the one-party amendment in 1982, with Njonjo telling Parliament that “the reason why we are doing this is to clear the air in Kenya once and for all, that this nation shall have one political party and one President so that from tonight, when we have passed this Bill … we will not hear these dreamers again.”

He added: “We hope these dreamers shall join the rest of the country because more than 99 pc of the population want and support this one party system.”

While, under a new Constitution, Kenya has undergone significant change, the old arguments used to restrict freedoms remain intact and, as has happened recently, can be mobilised at any time.

The evident vigilant engagement with these developments is a commendable necessity for protecting the country’s freedoms.