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Purge in Senate illustrates why the law is a servant of politics

Sunday May 24 2020

Kipchumba Murkomen

Elgeyo-Marakwet Senator Kipchumba Murkomen speaks about his ouster as majority leader, at his Nairobi office on May 19, 2020. PHOTO | EVANS HABIL | NATION MEDIA GROUP 

MAKAU MUTUA
By MAKAU MUTUA
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Recently, Senator Kipchumba Murkomen was booted from his lofty perch as Senate majority leader.

He quickly rushed to court to stop his defrocking by Jubilee’s Uhuru Kenyatta. Mr Kenyatta tore off Mr Murkomen’s frock-like Senate vestments – staff, ornate office, security guards, allowances and gas-guzzlers – in an act of public whipping.

I am told his ostentatious cars were forcibly repossessed as he drove along Mombasa Road. There’s a heavy price for conspicuous consumption when one is publicly disgraced, dumped and humiliated.

But the search for justice under the rubric of the courts by Mr Murkomen and his acolytes is foolish, or a public relations gimmick. His problems aren’t legal. They are political because that’s what the law is – political.

Scholars of the law, like myself, understand that law is politics. That in fact law is a servant of politics, and not the other way round.

This point should be completely uncontroversial because it’s Jurisprudence 101.

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Today, I want to give Mr Murkomen the tutorial about the law that he apparently missed in law school.

If you think of the law as an instrument for organising, changing, regulating, perpetuating, governing and preserving a society and its basic civilisation, then your heart won’t be broken by this column.

But if you think of the law as some kind of church doctrine that’s pure, neutral, unbiased, apolitical, and beyond fallibility, then you are going to end up in tears.

CLASS IMPOSITION

The law doesn’t exist, or live, in a vacuum. Nor does it materialise out of thin air. The law is based on a society’s norms, which are drawn from its dominant civilisation.

Norms are fountains of knowledge and wisdom in which the law is sheathed. In some societies, for example, twins were regarded as evil. This was a norm.

As such, the law authorised the killing of twins. The law is always based on a norm. But the law itself, and the norm on which the law is based, is a product of the politics in the particular society.

The law can protect you, or harm you. Like a sword, it’s double-edged and cuts both ways. It’s indeterminate.

That’s why laws and norms are end products of political processes. They are the distillation of social, ethical, religious or class-based interests of elites.

Often, laws are a class imposition by a hegemonic group, or elites in a society over subordinate, or subaltern, strata. Some examples are blatant.

Colonial laws were openly racist to preserve and perpetuate the exploitation and exclusion of blacks from the goods of society.

Laws are often gender-discriminatory. For instance, girls are often denied the right to inherit property.

In some countries, a woman citizen cannot by law pass her citizenship to a child with a non-citizen man, while the man can. Under versions of sharia law, a woman isn’t fully human with all rights.

PROCEDURE

In a modern society, even a democratic one, laws are made by the political branches of the state.

Laws are passed by the legislature through elected representatives or by factotums in the executive, which is also a political arm of the state.

Thus politicians or executive bureaucrats known as civil servants make, or interpret, the law. Legislatively, all laws are products of compromises among contending social forces in society.

If you doubt me, try to introduce legislation to permit same-sex relationships, or marriage, in Kenya. You will be lucky to exit the chamber alive.

The elite in Kenya is united in denying sexual minorities equal protection. That’s the opposite in America, the European Union, Ireland, and South Africa.

There’s a misunderstanding about what courts do. The notion of judicial independence – where the courts are the guardians of legality – doesn’t mean that judges aren’t political.

Nor does the principle of the rule of law remove politics from the judicial process. The rule of law means that laws must have a basic core minimum of fairness to safeguard basic human rights and due process protections.

Crucially, the rule of law requires that courts not be subject to executive fiat, arbitrariness, discrimination and opacity.

THE BENCH

But the rule of law doesn’t mean that judges leave their political biases, religious bigotries and political ideologies at the door. No – that’s not humanly possible when judges interpret the law.

Judges are inherently political beings. That’s why courts are political institutions. Courts are an arm of the state, which is a political institution.

That’s why good lawyers often predict how certain judges will rule based on their ideology and political philosophy.

In the Supreme Court of the United States, like all other courts, judges harbour ideological biases.

There’s never a doubt how Justice Clarence Thomas, a staunch Christian conservative, is likely to rule on most cases.

That’s why the SCOTUS is often split 5-4 based on the political ideologies of judges.

Mr Murkomen and his acolytes should realise courts are highly fallible and inherently political instruments. Like the law, courts can be a shield or a sword.

Makau Mutua is SUNY distinguished professor at SUNY Buffalo Law School and chair of KHRC; @makaumutua.

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