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There is nothing to fix or 'discipline' in the Supreme Court

Saturday September 16 2017

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A lot is said about authoritarian-style governments.

Many an attempt has been made to show evidence of correlation between undemocratic forms of government and a lack of development.

It is an established fact that the type of government and development are not necessarily correlated. However, a correlation exists between government efficiency and development.

Francis Fukuyama, in his book Political Order and Political Decay, argues that development does not depend so much on the type of government in power, but the effectiveness of government.

To ascertain the effectiveness of government, he compares different governments’ functions (by calculating government revenue as a percentage of GDP) against the strength of the state.

For example, two resourceful nations have been in the news for the wrong reasons: North Korea and Venezuela.

North Korea continues to relentlessly pursue its efforts to destroy the world while covering up the suffering of its people with a façade of hypocritical adoration of Kim Jong-un. Venezuela, an immensely rich country, shockingly sinks every day deeper into political and economic chaos.

Despite the diversity of issues plaguing each country, the question at the fore remains the viability of the idea of government; a question that we perpetually ask ourselves every time we encounter the government at work.

The people of North Korea and Venezuela face disillusionment. In both countries, the cost of living is dramatically high, inflation rates have soared, there are serious food shortages and a lack of access to resources with which to meet their basic needs.

North Korea’s population has been termed the most brutalised people in the world. The apathetic nature of Pyongyang's government towards its people’s suffering can be seen in its relentless pursuit of military dominance in the wake of its citizens’ struggle for survival.


Nicolás Maduro’s government, on the other hand, continues its efforts to centralise power regardless of the negative economic, political and social effects this has had on the oil-rich, fertile nation.

Joe Migdal says that effective government is capable of penetrating the society over which it presides. This means that it is able to formulate policy and follow it through.

Governments in developing countries fail to meet this requirement. They are too weak to carry out the main functions of government, which are the provision of public goods, control of elites and wealth distribution.

This, according to Fukuyama, is only done when the government is capable of wielding what he calls the equality of justice: ensuring the equal application of the law.

Essentially, government effectiveness is brought about by prevalence of the rule of law in a country; explained simply as principles or rules binding upon even the most politically powerful actors in a society.

Viewing the rule of law against government effectiveness shows a certain direct correlation between the two. Countries that report weakness in the rule of law also report weak government effectiveness. North Korea and Venezuela show this.






It is perplexing that the same nations, which lived together for more than a millennium before being separated in the 50s, fare so differently. Now South Korea and North Korea are miles apart.



Singapore, with its one-party rule, is not Asia’s greatest champion for democratisation. However, it boasts high human development figures, respect for the rule of law, and in turn, a very capable government. The ability of the government to penetrate its enabling society has been astounding.



Kenya’s endemic corruption and weak rule of law has been at par with government inefficiency.



Kenya will only enhance government efficiency by enhancing the rule of law. It takes time, but there is no shortcut. Judicial independence is precisely the greatest hope for Uhuru Kenyatta or Raila Odinga, or indeed Kalonzo Musyoka or William Ruto.

The Supreme Court decision, whether for Jubilee or Nasa, is the short-term pain for long-term gain. Rule of law is the only way to effectively prevent the institutional decay that led to the Venezuela and North Korea we see today.

Today, the most critical danger to the rule of law in Kenya is the useless rhetoric of parliamentarians and other politicians, who keep attacking the Judiciary and the Chief Justice.


Whether or not we agree with the Supreme Court decision is irrelevant. The decision it took is the key to sustainable development and ensures no one is above the law. It is a triumph for the rule of law.

Democracy is the rule of the majority, so if a fool makes foolish decisions then 100 fools together cannot make a wise decision. A hundred fools will make a huge foolish decision.

The President, the Deputy President, several senators and members of the National Assembly have spoken about the need to “discipline” the Judiciary. This is scary; it is a short-sighted misunderstanding of what they should really be fighting for.

Without judicial independence, the rule of law is a hypocritical lie and without the rule of law there cannot be a democracy. It perverts itself to become a tyranny.

To destroy judicial independence means, in the end, to destroy the very reason for the existence of Parliament, all constitutional commissions and all independent offices. Only the Executive will remain standing.

Then we will have gone back to what Nwabueze defined as the Africanness of the presidency; a presidency which is largely free from limiting constitutional devices and restraint mechanisms, particularly those of a rigid separation of powers.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi