Latest attack on Judiciary defeated but a new one not unlikely

Jubilee Party Secretary-General Raphael Tuju speaks during an interview at the party's headquarters in Pangani, Nairobi, on September 12, 2017. He has accused the Judiciary of bias. PHOTO | KANYIRI WAHITO | NATION MEDIA GROUP

What you need to know:

  • The way to understand the latest attacks on the Judiciary is that they are part of an evident campaign to consolidate power.
  • Through Kassait’s bill, Jubilee is flying a kite on the idea of a constitutional amendment for the benefit of Mr Kenyatta.
  • At the end of his term, leaving favourites behind would be the next best plan, if Mr Kenyatta does not manage to remain around himself.

In the week that seven members of the Judicial Service Commission, including Chief Justice David Maraga, survived an imprudent attempt to remove them from office, proposals emerged that seek to amend the Constitution to bring back the short-lived position of Prime Minister, among other changes, to the country’s arrangements on executive power.

While Assembly Speaker Justin Muturi quickly dismissed the petition by lawyer Adrian Njenga Kamotho, which sought the removal of seven members of the JSC, public debate regarding the proposals to amend the Constitution, made by Tiaty MP, Kamket Kassait, has only begun.

As argued below these apparently disparate occurrences, against the JSC and in Parliament, are linked.

ELECTION NULLIFIED

Although the petition on the Judiciary was quickly dismissed, it is clearly a progression on President Uhuru Kenyatta’s promise, made in anger after the nullification of the presidential election last August, that he would “revisit” the Judiciary.

Mr Kenyatta’s promise was followed by a crusade of vilification against the Judiciary that lasted throughout the campaign period ahead of the second presidential election.

Contrary to the gesture of appeasement, in which Mr Kenyatta reached out to Justice Maraga at the start of his second term, the hostile rhetoric against the Chief Justice has emerged once more, first, through an ill-considered letter by Jubilee Party Secretary-General, and Cabinet Secretary designate, Raphael Tuju, which attacked Justice Maraga, and now the petition of last week.

If the motion by lawyer Kamotho did not have official support, as widely assumed, it was at least the product of a season of political slights against the Judiciary, started and encouraged by the country’s top leadership.

UHURU KENYATTA

By disparaging the Judiciary, Jubilee has made it easy for others, like Kamotho, to also throw brickbats at judges and, even though Assembly Speaker commendably dismissed the latest attack, his party cannot escape responsibility for starting a process that has allowed others to bring the Judiciary into disrepute.

The question now is: Why, after first showing a gesture of appeasement to the Chief Justice, Mr Kenyatta is apparently back on the warpath against the Judiciary.

The answer to this question lies in the motivation behind the general behaviour of the President’s corner since the start of the second term.

This short period has seen a clear attempt to pulverise the opposition, including through the strong reaction to Raila Odinga’s “swearing-in” as the “people’s president”.

The crackdown has included the unprecedented decision to shutdown a number of television stations, the audacious cancellation of opposition activist Miguna Miguna’s Kenyan nationality and his subsequent deportation to Canada, the cancellation of the passports of a number of other opposition figures, the imposition of travel restrictions, the increased use of the criminal law against opposition figures, all this set against the rising cases of official defiance of court orders.

CONSOLIDATE POWER
These strong-arm tactics seem at variance with the apparently strong position in which Mr Kenyatta emerged from the elections, which includes a 98 per cent victory, a staggering majority in both Houses of Parliament and also a majority in the number of counties that his party controls.

The manoeuvres against the opposition and independent voices have seemed overkill if Mr Kenyatta’s only objective is to govern for a second and last term in office.

The way to understand the latest attacks on the Judiciary is that they are part of an evident campaign to consolidate power by weakening the opposition and neutralising independent oversight.

In this regard, these attacks are no longer the result of the presidential promise to “revisit”.

While the Supreme Court decision shocked the establishment and has provided the political cover to attack the Judiciary, even without it, Mr Kenyatta would still have gone for the Judiciary since its position is viewed as standing in the way of the new plan to consolidate power.

KASSAIT BILL
If, as widely appreciated, Mr Kenyatta already has a commanding mandate as would make second term safe, why does he need such extraordinary consolidation?

The bill by Kassait provides a clue as to the thinking in the President’s camp.

The bill proposes a weakened one-term seven-year presidency and the reintroduction of the position of Prime Minister, presumably open-ended, to be vested with the country’s executive power.

It would seem that the purpose of the ongoing consolidation is to support proposals for a constitutional amendment of the nature made by Kassait.

Mr Kenyatta remains unresolved about his future beyond the second term, and the possibility that he could have a role following a constitutional amendment is being considered.

To allow political space to process these decisions, it is necessary that independent institutions remain weak.

OVERSIGHT

If a decision is eventually reached to cut in Mr Kenyatta in the proposed power arrangements, the last thing he would want is strong independent institutions that could complicate such a plan.

Crushing the opposition and independent institutions is pre-emptive, and is the first logical step to take if the plan is to have a chance.

Through Kassait’s bill, Jubilee is flying a kite on the idea of a constitutional amendment for the benefit of Mr Kenyatta.

The bill cleverly appropriates opposition calls for political inclusion, which it converts into an in-house debate within Jubilee, which excludes the rest of the country.

Further, the bill contradicts Jubilee’s position that the sole content of any dialogue with the opposition is economic arrangements and not political power.

APPOINTEES
Other than the attacks on the opposition and independent institutions, there has been astonishing homogeneity in the persons Mr Kenyatta appoints to public office.

The motivations are similar to those behind the Kassait bill. First, Mr Kenyatta is responding to the uncertainty about his future after this term by maximising on favourites in public office.

At the end of his term, leaving favourites behind would be the next best plan, if Mr Kenyatta does not manage to remain around himself.

Second, there would be a clear role for loyalty if a plan like that proposed by Kassait is to work.

While the latest attack on the Judiciary has been defeated, a new one is not unlikely.