Uhuru's Legacy

By Gado Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

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Uhuru's Legacy

By Gado Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

Follow us on Twitter.

Uhuru's Legacy

By Gado Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

Follow us on Twitter.

Uhuru's Legacy

By Gado Four years ago, David Njenga graduated from University of Nairobi (UoN) with an upper second- class honour’s degree in biochemistry. A year to the August 2018 presidential elections, his mother reminded him that electing Uhuru Kenyatta for a second term represented his best chance of getting a job. Apolitical and not one to argue with his mother, he cast his vote for President Uhuru. Four years on, he has yet to find employment.

Ambitious, intelligent and optimistic, Njenga’s hopes of getting a job, any job, are fading fast. From his class of 103 students, only five have found steady work, and many of his former classmates are engaged all manner of hustles – the latest politically twisted jargon for one’s means of eking out a living. Njenga told me that the five that had found work had powerful connections in President Uhuru’s Jubilee government.

“One of them is a pastor’s daughter whose father is one of the evangelical pastors who attends the national annual prayer breakfast with President Uhuru,” said Njenga. “The pastor’s daughter is my friend. I used to help her with her class assignments and writing term papers, so occasionally she will call me to have lunch.”

Njenga’s background is a world apart from that of his friend, the pastor’s daughter, but she befriended him at Chiromo campus because of his big brains; symbiotic relationship is the best way to describe their platonic friendship – he wrote her schoolwork and she regularly bailed him out financially. “C’est la vie,” said the 25-year-old Njenga. “She’s the one who got a job and I’m still writing assignments and term papers for rich students.”

I asked Njenga about the Building Bridges Initiative (BBI), a document that, if implemented, is supposed to ameliorate the lives and prospects of his peers. “Have you read the report?” He gave me a blank stare, the kind of stare that says, “You even have the temerity to ask me that question?” “Should I be reading a political document or researching about my students’ homework? If my parents had powerful connections, I’d not be suffering like this. That’s all what matters in today’s Kenya. My degree counts for nothing, I might as well have ended up being a plumber.” Njenga was among the students who graduated top of their class, but even hoping to get a job in the corporate sector has become a flight of fancy. “It is the same as in the government – you must know people.” Njenga said the situation got worse with the outbreak of the COVID-19 pandemic in 2020. “Many companies have used coronavirus as an excuse to sack their employees. How then do you go to ask for a job when people are being laid off? We’re on our own and all what Uhuru is interested in, is how to succeed himself and safeguard his family’s empire and political interests post-2022.”

He gave me a blank stare, the kind of stare that says, “You even have the temerity to ask me that question?

Still living in his mother’s house — “I never imagined I’d still be staying with my mother, four years after campus.” — Njenga said none of his former campus mates cared about BBI: “They’ve not read it, some really don’t know what it’s all about, I mean even as students, we couldn’t find time to read stuff on our degrees. Can you imagine me finding time to read an obsequious document? For what?” But the real issue, I gathered from Njenga, wasn’t even finding time to read the BBI; it was the disdain that he and his former campus mates had for President Uhuru and his government, their disconnect with the political processes in the country, their lack of interest in how government is run or ought to be run.

“What can Uhuru claim to have done for the country, for the young people in the eight years he has been president?” posed Njenga. “I’m worse off than when I entered campus, the country is reeling in utter corruption, the economy is tumbling down, people now steal openly from the government and he has no idea how to fix anything. The youth’s biggest problem is the economy. We don’t care about anything else. The president said he knows how much is stolen from the state coffers every day, yet he doesn’t know what to do about it. Why is he the president then?”

Njenga said he voted for Uhuru because his mother asked him to. “I was just doing my duty and of course, it was a tribal thing.” The biggest problem with the youth, reckoned Njenga, is that they will vote for you tribally, if they have to, but if you won’t fix the economy, they will have no time for you. “This is where the Kenyan youth is right now with Uhuru’s incompetent government. Many of them contemplate migrating daily, to seek greener pastures wherever they will find them.”

Mwangi Waithera, 29, is just like Njenga — he voted for Uhuru because his beloved mother told him to. “I don’t care about politics, I wasn’t going to vote because politics is not my thing, but my mother repeatedly reminded me, even on the material day, that I should vote for the president.” A mitumba (second-hand clothes) seller with assorted customers — civil servants, lawyers, college students, among others — he has seen his business dwindle since 2017 when President Uhuru was voted in for a second term. He has listened to his customers, usually men of his generation, come to grumble in his tiny downtown shop.

“Do you know our salaries now come late?” laments one of Mwangi’s client, a civil servant. “Nobody cares about this BBI nonsense in the ministry offices,” he said. “Uhuru can afford to pay hundreds of millions of shillings to some so-called consultants to write a useless document called BBI, but our meagre salaries are being delayed up to the 10th of the following month?” The civil servant told Mwangi that his colleagues scoff at the report and have no time for President Uhuru. “He is the most colourless president Kenya has ever had. He is not respected among the younger cadre of the public officers, even worse among the older civil servants.”

Njenga said he voted for Uhuru because his mother asked him to. One of Mwangi’s customers, a lawyer, showed up one evening as we were talking in his small shop. Barely 30, Denis voted for President Uhuru twice. “That’s how much I believed in him. I couldn’t stand anybody criticising him. I couldn’t countenance Raila being the President, so I made sure I voted again on October 26. I wasn’t going to let down my parents on this. They had warned us children on how we should vote.” said Denis, adding, “My parents told all four of us children that the greatest disaster that would ever befall this country was allowing Raila to be president. ‘I know some of you have liberal ideas’ said my father. The liberal ideas remark was a stab at my brother, who had voiced his disenchantment with President Uhuru’s first term performance.”

Then the “handshake” happened and his parents baulked. The children often meet for dinner at their parents’ home, a middle-class couple from Kiambu County. “During one of those dinner meetings, my ‘dissenting’ brother asked my parents, ‘so what is going on?’” The bubble had bust — the economy was tanking and the handshake with the devil had taken place. “For once my parents didn’t seem so sure and my younger brother looked like he could have been right after all,” said Denis.

But Denis’s parents knew things were going south when their firstborn lawyer son started struggling. He postponed his wedding. He was increasingly going back to his parents to borrow money. “I’d so much expectations, I did a few ‘stupid’ things with some of my cash. I knew good times were coming, so I didn’t worry, we’d re-elected Uhuru and I believed big legal work was beckoning.” Denis said that today some of his lawyer colleagues are doing so badly they literally chase for work that pays as little as KSh3000.

Denis is so angry with President Uhuru, he told me, that he “is done with voting. It’s a complete waste of time and energy. I’m also very angry with my parents for misleading us, only that I can’t pick it up with them. But my bold brother did, especially on their berating of Raila. ‘Please dad, explain to us why Raila is suddenly now a darling of Uhuru?’ My parents looked abashed. ‘Uhuru has been such a huge disappointment’ is all they could muster to tell us over dinner.”

As a lawyer, Denis told me he had taken the trouble to read the BBI document. “It is a document meant to entrench President Uhuru’s powers. Some of my colleagues and I easily saw through it. By the way, I know some of the lawyers who participated in its writing. For them, it’s all about making hay while the sun shines. They were paid handsomely – any lawyer likes to make real good money quickly.”

Denis’s declaration that he will never voting again has become a standard response among the youth I interviewed; they vowed that they would not expend their energies engaging in a predetermined outcome again. “I voted for the first and possibly the last time,” said Njenga. “Everybody knows what happened during the elections, the refusal to open the servers, even my mother knows the games that were played, but we can’t discuss that. Her vote has since shifted to Ruto.”

I asked Mwangi whether he had read the BBI document. “I’m a busy person and my work doesn’t allow me to engage in meaningless ventures,” he said dismissively. “I hear we may have to vote for it in a referendum. On that day, I’ll stay at home if I can’t open my shop, and that’s what I’ll do in 2022, during the elections.” Mwangi said he would never again wake up early to please both his mother and Uhuru. “I’ve learned my lesson, I’ve no time for politics, let me concentrate on my life and business.”

Denis told me President Uhuru was keen on a referendum “so that he can extend his term. I’ve become the wiser. At the dinner meetings, I’ve become bold like my brother. My parents are no longer as enthusiastic about Uhuru as they were before. They are completely miffed with him. They cannot explain, leave alone understand, how Raila is now supposed to be the darling of the Kikuyu people. My parents form part of the generation that took the Gatundu oath of never ceding state power to Luos.”

…………

The graduate touts

Allan Kinuthia is, just like Njenga, a UoN graduate. Kinuthia graduated from Kabete campus in 2019 with an agricultural economics degree but he is a matatu tout. He started touting when he was a student “because I needed to raise some money for myself. Then it was a hobby and a hustle.” He voted for Uhuru and Jubilee in 2017. “I did it because that’s how my family voted. I voted on tribal basis, I couldn’t care less. If it worked for my family, why couldn’t it work for me?” Three and half years later, the truth of the matter is that it isn’t working for the family, much less for him. “There was this expectation by my family that, by the time I was graduating, I’d get a job – what with having voted for Uhuru and I having an economics degree,” said Kinuthia. “So even as I touted, I knew it was just a matter of time. I looked forward to a salaried job.”

“I’ve written countless job applications and I’ve given up,” said Kinuthia. “Jobs are there for those who are well-connected, not for people like me.” So far, none of those who were in his class has found a job. “As people trained to be professionals, it is important to get a job, practice what you learned in college, even as Kenyans keep on telling us students that we should think outside the box, meaning we shouldn’t always think of getting a salaried job.”

A happy-go-lucky, jolly fellow, Kinuthia tells me that the other touts are always taunting him; here’s a university graduate who is facing the reality of life outside the cosy world of college. “What do you think of BBI?” I asked him. Have you read the report? “No and I don’t have the time to,” he replied. So, how will you know whether it’s good for you or not? “You think I’m touting because I’m having fun? Uhuru is a failure. I studied economics; we’re where we are because of his incompetence. After taking the country down, Uhuru is busy crafting how to remain in power. That’s what BBI is all about.”

When not touting, Kinuthia is an online writer. “One time, I met a fellow student at UoN, who saw me touting in Kikuyu town. He asked me, ‘do you tout all the time? I can open an online writing account for you. Would you like to write and earn some decent cash?’ I took the deep end, learned the ropes and I’m doing it. My friends I was with in college don’t know or care about BBI, just like I don’t want to know about it. To many young people, Kenyan politics is b***s*** Instead of addressing the massive theft, BBI document is apparently advocating for more executive seats.”

Noisy and every inch the tout, Jimmy Kanogo is actually an entrepreneurship graduate from Jomo Kenyatta University of Agriculture & Technology (JKUAT). Until you engage him, it is impossible to tell he has ever stepped inside a lecture hall. “But it is what it is”, said Jimmy. After graduating in 2018, he quickly realised there were no jobs for graduates. “Those days are long gone, even medical students are nowadays not assured of getting a job.”

“Jobs are there for those who are well-connected, not for people like me.”

“Have you acquainted yourself with the BBI report,” I asked him. “Don’t get me started,” Jimmy said. “What is BBI? My elder brother graduated from university in 2016, he has yet to get a job. How does BBI contribute to the GDP in our house? My parents thought that once they sent us to university and we graduated, we’d be a relief to them. We thought so too, but look at where we are,” moaned Jimmy. It was the same story repeated in many Kikuyu homesteads: vote for Uhuru, he will straighten the path for you young guys, their parents told them. “And of course, we listened,” said Jimmy. “He lied to our parents, he lied to all of us, they are so angry they keep on cursing and vowing revenge. My mother can’t believe I’m indeed a tout, that after going to university I’ve been reduced to the level of the ne’er-do-wells, whom she always sees hanging around matatu stops and who she has utter disdain for.”

Jimmy said he struggled to read long essays throughout his university studies, “so you’ve to be nuts to expect me to read a document that has no relevance to my life. To fix the economy, you need a report? To curb massive looting, you need a report? To provide youths with jobs, you write a report? What is it that Uhuru wants?” His questions are rhetorical questions but it is obvious that the drafters of the BBI document have lost Jimmy and his peers.

“It’s been a long time since I saw my parents quarrelling, now they seem to quarrel so often,” said Jimmy. “My father cannot believe the money he leaves weekly for my mother is finished so quickly. ‘What’s these you are buying?’ he angrily asks her. Life has become triple difficult and it’s not a pleasant thing to see your folks quarrelling over cash. It isn’t that my mother is overspending or buying things she has not been asked to. But I also understand where my father is coming from.”

Jimmy isn’t interested in BBI, in Kenyan politics, in elections, in referendums. “My survival is my utmost interest. Let Uhuru do whatever he wants to do with power, but one thing is guaranteed – I’m never trooping to a voting booth again.” Jimmy said he wasn’t even really expecting to be employed per se, “but I’d hoped that by the time I was leaving university, the country’s economic climate would be such that it would allow for creativity and imagination for some of us to set up shop.”

Peter Chege is the opposite of Jimmy: slight of build, quiet, reflective, speaking only when spoken to. A UoN graduate, it is difficult to believe he touts, yet he does. “What options did I have?” he asks. Peter graduated in 2019 with a degree in sociology. The following year COVID-19 struck. Peter is from a poor peasant background and this meant that he had to quickly decide what to do with his life post-university. “My parents had struggled to put me through university; they were, in a manner of speaking, through with me.”

So he came down to Limuru, where he had friends among the manambas (conductors) and matatu drivers. They took him under their wing and taught him the ropes. “Can you imagine the people who inducted me into the industry are guys who left school either at primary level or at most secondary school?” When I asked him what BBI means to him, he said, “It means nothing, I don’t know what it is. I hear people talk about it. I keep away from such discussions. I don’t want to be upset and left with a foul taste in my mouth.”

Until you engage him, it is impossible to tell he has ever stepped inside a lecture hall.

Peter told me that his friends at the matatu stop taunt him: “Peter, please tell us, what’s the use of a university education? The drivers, manambas and fellow touts are the ones who like discussing BBI. So they ask me, ‘Peter, you’re the one who’s educated amongst us here; can you explain this document for us? If Peter is the most educated among us, and he isn’t interested in the report, why should we be interested?’” Peter and his matatu friends are agreed on one thing: none has read the report, and they will never read it, but they know one thing for sure: “BBI is about power arrangements and dynamics by the political elites that want to hold onto it, even as they organise us for 2022. It has got nothing to do with us. It is a route being mapped by Uhuru and his cabal to retain power.”

…………

Apologists for Uhuru

“Raila has been played,” said Victor Oluoch, “but you know what? We can’t say it loud; this is supposed to be an ethnic project, so no Luo should be heard badmouthing it. But there’s a discomforting disquiet around the issue; all’s not well on the home front. We welcomed the handshake and its appendage the BBI in 2018, but three years down the line, we are not sure any more.” Victor, a 33-year-old IT specialist, said the handshake had stopped the killing of Luo youth by the state security apparatus and rescued the community from being used by all and sundry as the bogeyman of opposition politics.

“Opposition politics in this country [is] anathema: you’re anti-development, anti-state, anti- communal cohesion. The Luo community were branded all these and it reaches a point where you say, ‘Ok guys, somebody else can carry the cross,’” said Victor. “So we welcomed the handshake and its relative the BBI. We were also quietly told that BBI would bring development to Luoland and we said hoorah, why not? The many years of fighting the state had denied the region development.”

Development is a loaded word; it can mean many things. “But whatever it meant, we the Luo people needed it,” pointed out Victor. “Therefore, it was very odious to hear Raila say the other day that the developments that have apparently been taking place in Nyanza counties, courtesy of the handshake, were after all not meant to be a favour, but a countrywide thing. I didn’t understand where that came from, but certainly, it is not the only misgiving that some of us now have with BBI.”

On 7 June 2021, Raila was quoted as having said, “None of the projects launched or mentioned during the Madaraka period are owned by or meant to serve Kisumu alone. They are meant to, and will serve the entire Kenya.”

The ongoing development projects in the Nyanza region are something that BBI supporters in the region are pointing to as a positive. Ojijo Orido said to me that, over and above everything else, BBI was good because it had brought development to Nyanza. “Factories are being opened up, roads are being built, the port is being resuscitated, the railway line is alive once again, the airport is being expanded . . . development is now being shipped to Nyanza more than everywhere else in the country. We Luos have benefited from BBI and that’s why we support it.”

“But was that the real agenda of the handshake and its aftermath the BBI?” asks Victor. “I’ve taken the trouble to read the document. Nothing could be further from this proposition. Instead, the report, which has mutated a couple of times, proposes other things.” The issue of an additional 70 constituencies, for example, is very troubling, said Victor. “How is it that Nairobi and Mt Kenya region end up with more than 33 new constituencies, while the entire Nyanza region gets less than 4 extra seats? Is this not gerrymandering?”

Victor said the handshake had stopped the killing of Luo youth by the state security apparatus.

According to the BBI proposal, the extra constituencies will be distributed as follows: Nairobi 16, Kiambu 6, Nakuru 5, Meru 2, Embu 1, Kirinyaga 1, Murang’a 1 and Laikipia 1. In contrast, Homa Bay has been allocated 2 seats, Siaya 1 and Kisumu 1. The rest of the new seats are to be distributed across the rest of the country. Yet Victor told me that among the Luo people this disturbing question is not supposed to be raised. Why? “Oh, you know, I’ve heard it being whispered in Raila’s inner sanctum that mzee has been promised the big one, so it’s imprudent to bring up the offending question. So, what’s BBI really about? Is it about “favoured” development, which Raila is now denying? Was it about ensuring the Luo youth are not gunned down? Is it about being promised the ‘big one’?”

Woe unto the Luo people if BBI doesn’t succeed, warns Victor. “Because it will mean the Luo youth could again be fodder for the police, development will be stopped forthwith and the promise of the ‘big one’ will vanish just like that. Is that how we should be conducting our national politics?”

“It is unfortunate the Luo people have become the biggest apologists for President Uhuru’s incompetent government,” said Ken Owiti. “We behave as if the indiscriminate killings of our people didn’t occur in 2017. We’ve forgotten all the violence that was visited upon the Luo people, prior to the repeat presidential elections on October 26, 2017. We have all forgotten the Baby Pendo incident. We can’t continue to live in the past, some of my folks say, but what does the future hold? The future of the Luo people is pegged on Raila cosying up to the system and being promised the presidency. That’s all.”

Ken showed me a video clip of Orido, a journalist, waxing poetic about President Uhuru’s development record. In the clip, Orido cites Outer Ring Road as an example of the strides President Uhuru has made in developing Kenya. “Is that all what Orido can talk about? Outer Ring Road is a project started under President Kibaki. Development is not a favour to Kenyans; it’s their right because the money borrowed to build and expand these roads is used in their name. But anything to prove you’re a BBI and a Raila cohort.”

The self-flagellation of the Luo people during President Uhuru’s visits to Kisumu has been a trifle embarrassing, said two Boda Boda riders. “What point have we been trying to convey? That we’ve forgotten the brutal violence that took place in Kibera and Kondele not too long ago? That we’re now loyal followers of President Uhuru and his inept government? That we’re a pragmatic, forward- looking people? That we should forgive and forget? Just like that? No questions asked?” The boda boda riders said that among a section of the Luo people, the force of reason seems to have been trumped by reason by force. “If you raise these critical questions, Raila’s adamant followers threaten you with violence, ‘you must be a Ruto supporter – are you a Luo? Who are you to question Raila? BBI is Raila and Raila is ours’.”

Raila’s magnetism among the Luo people is waning, especially among the younger generation, said Otieno Magak. “His politics has ceased to be spellbinding and the handshake didn’t help matters. You can’t question BBI. To question BBI is to question Raila. You can’t ask how supporting BBI, wholly, unquestioningly, will translate into determining the price of sugar in your house. You must support it because Raila has said so. If you prod, nasty epithets are thrown at you. You’re deemed a traitor to the cause, you can be physically attacked.”

Woe unto the Luo people if BBI doesn’t succeed.

The Luo people are being corralled into supporting BBI because this could be the “bullet”, pointed out Magak. “How many ‘one bullets’ can one possibly have? How many times can you promise a political tsunami? The younger generation of Raila supporters are saying ‘we’ve done our civic duty. We’ve lent our unwavering loyalty to him and his political cause, but there comes a time when we must think about our own future and our own future cannot be tied to an aging opposition doyen.’”

Magak said to me that indeed there is a quiet movement sweeping across the Luo nation, of the millennial and generation Z that is keen on charting their own political path away from BBI, away from Raila’s stranglehold, away from the politics of patronage. “Raila has really fought hard, no one can take that away from him, even his greatest detractors concede the man has been resilient, even as he has been cheated out of victory several times. But BBI is a con game which, if it backfires, will have much wider ramifications on a community that has never sat well with status quo politics.”

As BBI proponents and antagonists square it up in court, engaging in legalese and subterfuge, Kenya’s largest voting constituency, the youth — disillusioned, dispossessed, disaffected — have given the report a wide berth.

Postscript

The 2 June 2021 decision of the seven-judge bench to issue their ruling on 20 August 2021 doesn’t augur well for BBI said Magak. “Whichever way you may want to look at it, at the end of the day, one party seems to have been lied to all throughout. It is significant to note that immediately after the judges gave their date, after the final submissions, the IEBC chair reiterated, soon after, that the general elections will be held on 9 August 2021. It is not for nothing that Wafula Chebukati found it prudent to remind Kenyans at this juncture that the election calendar is on course. But don’t take my word for it.”

–

This article is part of The Elephant BBI Judgement Series done in collaboration with Heinrich Böll Stiftung (HBF), Dialogue and Civic Spaces Programme. Views expressed in the article are not necessarily those of the HBF.

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

Follow us on Twitter.

Uhuru's Legacy

By Gado The rapprochement of March 2018 between Uhuru Kenyatta and Raila Odinga, now famously referred to as “the handshake”, which kick-started the BBI consultation process and culminated in the Report of the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report, is emblematic of the rough-and-tumble that is the country’s tumultuous political history.

The report of the taskforce provided long-awaited principles and recommendations for the construction of “a new Kenyan nation,” including several changes in the current constitution. But a portion of Kenyatta’s Mashujaa Day speech on 20 October 2020 suggests a need for caution. It was rather ahistorical, and unfortunately, oblivious of numerous imposed top-down attempts at constitution-making and other general attempts to foist government declarations or policy documents on ordinary people.

Hoping to, perhaps, prepare the ground for elite-led changes to the 2010 constitution, the president’s speechwriters sought to arrive at this end by using a portion of the speech to remind citizens that constitutions are not static but often change. This process, the writers asserted, should be a product of “constant negotiation and renegotiation of nationhood”, and building a constitutional consensus. The italicized end of the president’s paraphrased speech is instructive, and erroneous in the light of the country’s constitutional history.

Moreover, referring to the Steering Committee’s report, the speech sought to prepare the ground for constitutional and other changes by calling for the building of “a sense of national ethos” that will emphasize belonging and inclusion. This, as the committee rightly observed, must include “documenting our history honestly”. But not so the president as per his speech, notably.

Most historians and citizens would agree that a key element in such an honest history must be factual accuracy regarding past events and interpretations solely based upon such facts. It is this latter point that the speechwriters disregarded in putting forth an account of constitution-making. While correctly emphasizing the need for a constantly moving exercise requiring, again, note, a consensus among political leaders and wananchi, the examples from which they drew during the colonial era demonstrate no such thing. Neither the Lyttleton Constitution of 1954 nor the Lennox- Boyd Constitution (announced in 1957 and implemented in 1958) were the product of a consensus.

First, both constitutions were imposed by the secretaries of state for the colonies after whom they are named, and the terms were dictated by the then governor Sir Evelyn Baring and his advisors—does this ring a bell yet? Elitist. Moreover, the Kenyan population, and particularly Africans, had no input whatsoever in the Lyttleton Constitution, which was imposed even though all six of the Africans appointed to the Legislative Council (LegCo) refused to accept the Lyttleton plan. That plan was not about inclusion at all, but its main purpose was to create a multiracial council of ministers in which, in the early stages of planning, no African would hold a portfolio. Lyttleton eventually agreed for one ministry to be headed by an African, but it ought to be recalled that the constitution provided for three European settler ministers to join the two settlers already holding the important portfolios of finance and agriculture.

Neither the Lyttleton Constitution nor the Lennox-Boyd Constitution were the product of a consensus.

The key group for Lyttleton and the governor in Kenya’s racial politics of the time was thus the European settler politicians. The acceptance of the plan by most of them constituted Lyttleton’s success and left the African population, among whom none could vote for representatives to the Legislative Council, totally excluded. While there was little inclusion, African LegCo members did gain a promise from Lyttleton that the colonial government would take steps to provide for African representation. The promise, imposed without the agreement of settler representatives, led to the first African elections of March 1957. The eight African Elected Members (AEM) immediately launched a campaign for change that would produce a more inclusive constitutional order (European voters elected 14 LegCo members and Asian voters 6).

Amazingly, Kenyatta’s speechwriters cast this as consensual by the statement that if the Lyttleton Constitution “was wrong, it was made right” by the Lennox-Boyd Constitution. This interpretation has no basis in fact as all the European settler members of LegCo opposed the AEM campaign, which included a refusal to accept the two ministerial positions reserved for Africans in 1957. Significantly, most Asian political leaders came to support the AEM demands. Just as in 1954, then Secretary of State Alan Lennox-Boyd, in response to the AEM campaign, flew to Nairobi in late 1957 to implement constitutional changes suggested by Baring. He was prepared to increase the number of AEM in the LegCo and determined to make them accept ministerial portfolios and introduce what came to be known as specially elected members to the LegCo. AEM rejected these proposals, including the six additional LegCo seats for Africans and the creation of a council of state.

Convinced he knew best, and that the only views that mattered were those of the European settler population, an infuriated Lennox-Boyd went ahead anyway, giving up his attempt to build consensus and ignoring the opinions of most of the Kenyan population. The result was continued political exclusion, and a period of on-going political tension and racial hostility. The AEM boycott of the Lennox-Boyd innovations (except the six additional LegCo positions) by April 1959 forced the British government to accept that the Lennox-Boyd plan had become unworkable. The solidarity of the AEMs won the battle.

But it was a glaring distortion of history to single out Oginga Odinga, Daniel Toroitich arap Moi, and Masinde Muliro as heroes in the president’s speech while at the same time seeming to say that as AEMs they consented to the changes desired by Lennox-Boyd and Baring. Nothing could be further from historical fact as the archival records of the discussions leading to the Lennox-Boyd Constitution clearly illustrate. Asian political opinion supported the need for constitutional change, but several of the European elected members of LegCo did not favour discussing constitutional changes. The years 1959 and 1960 brought an end to consensus among the settler political elite.

The first Lancaster House constitutional conference (LH1) thus brought together Kenyan LegCo members who viewed constitutional change very differently with few apparent grounds for agreement. While the settlers were divided, the 14 AEM delegates were united in a firm stand in favour of a rapid democratic transition for Kenya leading to self-government and independence within a short period of time. European delegates were, by contrast deeply divided, with the right- wing United Party favouring continued colonial rule and the New Kenya Party (NKP) delegates favouring a gradual transition to independence, and a multiracial executive and parliament with reserved seats for Europeans and fewer for Asians. The new Secretary of State Iain Macleod, like his predecessors, was unable to find or facilitate consensual agreement on a new constitution. Contrary to the claims of the speechwriters, therefore, there was no common ground negotiated among the delegates.

Macleod moved beyond this stalemate by putting a set of proposals before the by-now weary delegates that they were required to accept in full or reject. This was a quite different approach than in 1954 and 1957. Macleod then cleverly manoeuvred the African, Asian, and NKP delegates into acceptance of his terms that went some way toward meeting the demands of African delegates, but not others, for instance, universal suffrage, the appointment of a chief minister, and the release of Jomo Kenyatta. In a real sense, for that reason, the LH1 constitution was an imposed one, and indeed many living in Kenya at the time rejected it.

The 14 AEM delegates were united in a firm stand in favour of a rapid democratic transition for Kenya leading to self-government and independence within a short period of time.

Nonetheless, the AEM accepted it as ending European settler political predominance in Kenya and the new plan as a step on the way to independence. Over subsequent months, however, the consensus that had united the AEM disappeared as bitter divisions developed regarding the type of constitution Kenya should adopt as an independent nation. The competing visions of the two political parties, KANU (a unitary republic) and KADU (majimbo or a federal republic), were difficult to reconcile. This formed the background for the second Lancaster House conference in 1962. The absence of agreement on the basic constitutional structure was clear from the first meeting, and again, a British colonial secretary was forced to impose a settlement that did not take the form of a constitution but of a framework on which a coalition government in Kenya would work out the final document. This took a year and required the British government to draft the self-government constitution and decide key provisions because the KANU and KADU ministers could, well, not agree.

This brief narrative serves to make it clear that there was no consensus here anymore than with the three previous constitutional talks. It is thus, rather puzzling, if not amusing in an odd way that, in a desire to promote negotiated and consensual constitutional innovation under the auspices of the BBI in the year 2020, and by the president no less, these should be the examples put before the Kenyan public in justification. Rather, an accurate account and analysis of earlier or past constitutional innovations demonstrate very clearly the need for wide consultations among the populace (unlike the episodes described above where only a narrowly defined political elite participated) and a broad- based consensus. In other words, the same message can be got across to the public by relating the correct facts. As the speechwriters noted: “The more we ponder our history in its truest form, the more liberated we become.” It is always best to heed the lessons of history, not to ignore it altogether, and repeat the same grievous mistakes.

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Uhuru's Legacy

By Gado

Uhuru Kenyatta seems to be Kenya’s least powerful president – at least as suggested by a number of recent developments.

Kenyatta has spent much time and energy during his second term in office defending the basis of his Building Bridges Initiative, otherwise known as the BBI. He has also had to defend his rekindled dalliance with his closest challenger for the presidency in both the 2013 and 2017 elections, Raila Odinga.

Uhuru’s famous March 2018 handshake with Raila is not only wreaking havoc within his own Jubilee Alliance party, but has also made his Mt. Kenya political base restive. The climate of intolerance that he attempted to create – unleashing the security agencies on recalcitrant members of his party – following his détente with the leader of the largest opposition party in parliament, the Orange Democratic Movement (ODM), seems to not have yielded much for him, after all. Kiambu Woman Representative, Gathoni wa Muchomba, is now the latest supporter from the president’s base to decamp to the Tangatanga movement, the Jubilee wing associated with the Deputy President William Ruto, which has opposed the handshake and the BBI process.

For several months following the handshake, Kenyans grew accustomed to an increasingly irritable and angry president, demanding but not quite able to command full loyalty, especially within his party. The country became used to bitter public diatribes that the president unleashed in his mother tongue, targeted at people who disagreed, or criticised his leadership. Uhuru Kenyatta continues to be on the defensive regarding his under-performing administration and his expensive mega- infrastructure projects. With his party the Jubilee Alliance declared damaged by his deputy president, Uhuru constantly distances himself from what he now describes in public as “politics”.

Now, whenever Uhuru speaks at the launch of various “development” projects, the president is careful not to mention the Big Four Agenda – affordable universal health care, food security, manufacturing and affordable housing – a dim prospect given the ravages of the COVID-19 pandemic and the disastrous economic record that preceded it.

Not only has the judiciary complicated the progress of his BBI plan, but the entire legal fraternity has been up in arms over Uhuru’s decision not to appoint six judges out of a list of 40 that was presented to him over two years ago by the Judicial Service Commission. While the president has insisted that the six judges have outstanding integrity issues — based on information he claims was provided to him by the National Intelligence Service (NIS) — the newly-appointed Chief Justice, Martha Koome, together with her predecessors, David Maraga and Willy Mutunga, have all insisted that the president must appoint the 6 judges or disclose the evidence he claims he has against them.

Since 2013, for Uhuru and members of his administration, the space for making and swiftly implementing public policy has been severely constricted. The requirements for public participation and the involvement of multiple players in the governance process have slowed down the wheels of authoritarian-technocratic rule.

Uhuru’s administration has also had to grapple with constant public criticism, especially when he fails to abide by the law.

Broadly, this is the result of the ramifications of a public language of rights, public participation and consultation, which has been given prominence across the country by the Kenya 2010 constitution.

Limiting the executive branch

While recent analyses and other writings celebrating the 13th May 2021 ruling of the Constitutional and Human Rights Division of the High Court of Kenya in David Ndii and Others vs the Attorney- General and others — widely referred to as the BBI judgement — have been informative and measured, they have elided a crucial understanding of how politics actually works in Kenya.

While focusing on the judgement’s attention to Kenya’s constitutional history since independence, the commentators have glossed over a critical political matrix that underlines Kenya’s constitutional and legal transformation. This is to say that Kenya’s constitutional history did not develop in a vacuum, and that to understand the recent limitations on the powers of the executive, the case for viewing Kenyan politics in the long durée remains compelling.

In her analysis of the judgement, Ambreena Manji highlights the emphasis that the judges, who declared the BBI process unconstitutional, put on Kenya’s constitutional history, arguing that the BBI judgement should be considered historic in two ways: in its elaboration of the basic structure doctrine and in its historical reading of the struggle for constitutional reform in Kenya.

Recent analyses and other writings celebrating the 13th May 2021 ruling of the High Court have elided a crucial understanding of how politics actually works in Kenya.

But the question still remains: why was it possible for Kenyans to bequeath themselves a progressive constitution that limited executive authority in 2010 and not, say, the 1970s, a time of hyper- amendments, and where the “Imperial Presidency” had already emerged?

How then was it possible to write a constitution that seemingly stands against the interests of a political elite whose ideological origins (and for some, biological origins) can be traced to the 1960s, and who were still in power in 2010 and still are? How were Kenyans able to protect the constitution from destruction by the political elite?

Kenya’s constitutional and legal transformation, I argue, is the outcome of Kenya’s own aggressive politics of ethno-regional coalition building, where elites claiming to represent certain ethno- regional communities have become useful in legitimising the political regime.

Put differently, the current transformations in Kenyan politics — where limits can be placed on the extent of the president’s power — are part of the contradictions inherent in the very system of elite domination that historically produced the “Imperial Presidency” under the previous constitution.

Allow me to explain using historical analysis.

The era of elite consensus

As mentioned, the ideological origins (and for some, the biological origins) of Kenya’s current political elite can be traced back to the 1960s.

The power of Kenya’s post-colonial elite to dominate the rest of the population and key sectors of the economy, and to maintain socio-economic inequalities, has best been exemplified when there are high levels of trust amongst the political elite, or essentially, high levels of elite consensus regarding the “rules of the game”.

Following Kenya’s independence in 1963, elite domination rested on the reification of Jomo Kenyatta as Baba wa Taifa (father of the nation), an alliance, or consensus of ethno-regional elites, the demobilisation of opposition forces, and the ability of those elites to reproduce their political and economic power, while precluding fundamental socio-economic reforms.

It was in this context that, from 1964 to 1992 — the year of the return to multi-party politics — the constitution was amended over twenty times. The amendments served to empower the executive branch of the government at the expense of parliament and the judiciary. At the height of this madness (in 1990), the Office of the President (OP) had a staff of 43,230, representing a ratio of 1 in 6 civil servants. The OP became a parallel government, with considerably more executive power than actual ministries. According to the BBI judgement, the constitution had been “stripped of most of its initial democratic and social justice protections” such that the country “had effectively become an authoritarian state.”

The situation was not improved by the fact that Kenya had emerged out of colonial rule with a profoundly unbalanced institutional landscape.

Parliament, political parties and the judiciary were largely underdeveloped compared to the executive and the bureaucracy. For purposes of mobilising the population for development and for political legitimacy, the ruling party — the Kenya African National Union, or KANU — was immediately replaced by the bureaucratic machinery that was directly answerable to the head of state. In fact, it was the provincial administration, answerable to the executive and with a demonstrable capacity to exercise top-down political and administrative control across the country, that was responsible for the maintenance of law and order, keeping the entire population in check, and maintaining the socio-economic inequalities that have been a hallmark in Kenya’s economic trajectory since independence.

Why was it possible for Kenyans to bequeath themselves a progressive constitution that limited executive authority in 2010 and not, say, in the 1970s?

Before the colonial government departed, it ensured that it had demobilised the Mau Mau and left the instruments of power in the hands of elites who would be sympathetic to British interests. This is why, shortly after he became Kenya’s first Prime Minister, Jomo Kenyatta — who had been declared by a colonial governor as “Kenya’s leader unto darkness and death” — rushed to Nakuru to urge white settlers not to leave the country.

Inside the smoke-filled room, Kenyatta dismissed recent clamours for the redistribution of land and wealth by many of his supporters as “young blood boiling” that he would soon quell down.

Kenyatta went on to assure his audience – many of whom had been alarmed by the impending independence – that he was a farmer like them, that they had something in common, the subtext suggesting that he was a “responsible” African leader.

These managerial arguments were not a simple placating of white settlers.

By the time Kenyatta was addressing his newly embraced compatriots in Nakuru, the colonial government had already co-opted sympathetic African elites into the bureaucracy, the legislature and the private-property-based economy. A coalition between the executive branch of government, the allies of colonialism, and representatives of global capital thus emerged, and Kenyatta was keen to deepen that arrangement. This also meant that colonial loyalists and representatives of transnational capital would come to reap the full benefits of independence. It was during this time, the late 1950s and early 1960s, that these elites not only took control of the means of production, they also assumed the political and institutional capacity to reproduce their dominance in the decades to come.

In particular, the ability of this alliance to reproduce itself over the years since independence lay in its capacity to demobilise popular forces and progressive movements, especially those elements of the nationalist movement that questioned both the social and economic inequalities of the post- colonial state. The ability to demobilise opposition forces lay in the strength of the bureaucracy that was itself beholden to the elites that had taken over the executive branch in the early 1960s.

Representative institutions, such as parliament and local governments, were downgraded and diminished. Amendments to the constitution made easy, in this context, became a sharp tool in the exercise of authoritarian power. This is why, bequeathed a Westminster-style parliamentary system of government in 1963, Kenya quickly became a republic with an executive president in 1964.

The independence constitution had also made provisions that took considerable power and significant functions of government away from the Nairobi-based executive through a system of eight regional governments of equal status known in Swahili as majimbo. By 1964, the majimbo system had been dismantled.

The ability to demobilise opposition forces lay in the strength of the bureaucracy that was itself beholden to the elites that had taken over the executive branch in the early 1960s.

With majimbo gone, the independence senate lacked rationale, and it too was abolished. Just before this happened, the Kenya African Democratic Union, or KADU, the main supporter of majimbo, had folded, citing frustration from the executive.

By abolishing the regional majimbo governments, and getting rid of the senate, the parliamentary system and the first post-colonial opposition party, the post-colonial elite pact of domination was complete.

The era of elite fragmentation

Daniel Arap Moi — whose political base was outside the central region that had dominated politics since the early 1960s — grew more and more paranoid when he became president in 1978.

First and foremost, Moi knew very well that he did not command the respect that Kenyatta had commanded as the founding father, but in addition to this, the resources that Kenyatta relied upon to reward other elites who eventually legitimised his rule became thinner during Moi’s time.

An attempted coup in 1982 poisoned the chalice, and Moi resorted to more strong-armed tactics. He began interfering with elections more brazenly, and eventually surrounded himself with a coterie of loyal political cronies who did not carry much political weight in their own regions.

With the return to multi-party politics in the 1990s, the core that had held together the elite pact of domination during the 1960s and 1970s gave way. This ushered in a period of elite fragmentation, which was combined with the instrumentalisation of ethnicity and violence in the political marketplace.

The situation was not improved by the fact that Kenya emerged out of colonial rule with a profoundly unbalanced institutional landscape.

In an attempt to maintain his grip on power, Moi resuscitated the majimbo idea in the Rift Valley, Western and Coast regions. While the majimbo idea regained prominence in these regions, its ethnically-exclusivist language engendered massive violence that targeted Kikuyu peasants and Luo workers, especially during electoral periods, in an attempt to evict them from these regions.

A brief coalition of Luo and Kikuyu elites in 2002 removed Moi from power. But the next president, Mwai Kibaki, assumed power under Kenya’s former top-heavy constitution, that which had created what we now remember as the “Imperial Presidency”. Kibaki had won the 2002 elections on a platform of constitutional reform, but differences quickly emerged in his coalition — the National Rainbow Alliance, or Narc — regarding what would be the new constitutional order.

The differences revolved around two main questions regarding the structure of government. The first question was: should Kenya adopt a presidential or a parliamentary system? The other question was: what should be the extent of decentralisation?

One of the Narc coalition’s partners, the Liberal Democratic Party (LDP) that was led by Raila Odinga, favoured a parliamentary system, but with a dual executive, that is, a president with a strong prime minister, and extensive provisions for decentralisation, that is, a three-tier system involving eight regions akin to the majimbo system of the 1960s.

The other coalition partner, the National Alliance Party of Kenya, that was led by the then President Mwai Kibaki, favoured a system with a single executive, that is, the president as the primary holder of executive authority, and a modest form of decentralisation, preferably deconcentration.

Kibaki’s group, of course, was in control of the executive branch, and as such, worked to ensure that the Bomas of Kenya draft (named after the venue at which it was deliberated), and which had provided for the system most favoured by Raila Odinga’s faction of the Narc coalition, was altered.

The Bomas deliberations had begun in the twilight years of Moi’s rule and were continued by Kibaki during his first term in office, becoming Kenya’s National Constitutional Conference, a people-led, constitutional review process. However, the draft that was presented at the 2005 constitutional referendum was not the one agreed to at Bomas.

Tampered with by the then legal advisor (the Attorney-general) of the executive branch, Amos Wako, the draft that became known as the “Wako draft” retained a powerful president and watered down the provisions on decentralisation.

Essentially, the “Wako draft” rebuffed the greatest assault on the power of the executive since Kenya gained independence.

As a result, it was defeated by a vote that was mobilised by a new coalition, the Orange Democratic Movement, the ODM, largely led by Raila Odinga, and which was named after the “No” symbol (an orange) of the 2005 plebiscite vote. Kibaki’s government became more and more alienated from the non-Kikuyu public. The seeds of the 2007 post-election violence had been planted.

Birthing the 2010 constitution

The process of elite fragmentation that had begun in earnest during the 1980s and 1990s had exceeded its limitations by 2007. Trust amongst the political elite was at its lowest immediately before and after the 2007-08 post-election violence.

Believing that he was operating in the institutional landscape within which Jomo Kenyatta had operated in the 1960s and 1970s, Kibaki deployed the machinery of the executive to quell opposition protests against his declared victory in the 2007 elections. The outcome was disastrous.

Over 1,300 lives were lost and more than half a million people were displaced in violence that was sparked by the disputed electoral results.

Without an alliance of elites representing Kenya’s multiple ethno-regional formations backing him up, Kibaki was forced to enter into a deal with Raila Odinga, ODM leader and his challenger during the 2007 elections.

Since trust amongst Kenya’s political elite was at an all-time low, the deal had to be brokered by a foreigner, the late Kofi Annan, former Secretary-General of the United Nations, and through it, Raila became Prime Minister in a coalition government with Mwai Kibaki as president.

Important to note – and central to this piece’s argument – is that it was within this context of lack of political trust amongst the political elite — or elite fragmentation, with one side always trying to “fix” the other — that far-reaching constitutional reforms saw the light of day, culminating in the Kenya 2010 constitution.

A marriage of convenience, with mutual suspicion and at times, non-cooperation, became the best description of the operations of the grand coalition government of 2008-2013. In short, the political elite had been forced into a weak alliance following the 2007 post-election violence – nothing to match the strong alliance of elites, and hence, elite domination, that was witnessed in the 1960s and 1970s.

The “Wako draft” rebuffed the greatest assault on the power of the executive since Kenya gained independence.

In addition, the 2007-08 post-election violence meant that the political elite had lost the moral authority to define the future political direction of the country without consulting ordinary citizens. This meant that, inadvertently, the political elite came to share the power to decide the country’s political affairs with civil society organisations and human-rights activists, most of whom were lawyers. These lawyers and activists had also taken part in the then twenty-year popular struggle for a new constitution, a struggle that begun with the re-introduction of multi-party politics in the 1990s.

The lessons and the pain of that struggle informed the strong guardrails that were placed against amendments to the harmonised draft of previous draft constitutional documents, work that was done by a Committee of Experts (CoE) appointed in 2008. At the Great Rift Valley Lodge in Naivasha, the CoE-crafted and harmonised draft was presented to a Parliamentary Select Committee of 14 Party of National Unity (PNU) members, Kibaki’s party, and 13 ODM members, Raila’s party. During the Naivasha proceedings, the PNU side was surprised by ODM’s willingness to relax its demands for a three-tier decentralised system based on eight regions in favour of devolution based on 47 counties; and to let go of the parliamentary system altogether in favour of the presidential system.

The deal that would eventually lead Kenya into a pure presidential system under the 2010 constitution, it was reported, was struck by none other than Raila Odinga and Uhuru Kenyatta, the principals of the BBI process eight years later – in a room at the lodge.

A pure presidential system in the sense that, not only would cabinet ministers be appointed from outside parliament, but the losers of the presidential election, no matter how many votes they garnered during an election, would not be accorded any public office. The Naivasha draft, presented to parliament for debate in mid-2010, also scrapped the regional tier of government, and fixed the number of parliamentary constituencies at 290. Given the strong parameters that had been placed by the CoE process to changing the draft in parliament, nothing much changed after that.

Of course, the electoral experience of 2007 had shown both Raila Odinga and William Ruto — the leading ODM politicians at the time — that they too, could ascend to centralised power by becoming president directly through the ballot, and not through control of regional governments, or by having to go through parliament. In light of this, they abandoned the clamour for majimbo and for the parliamentary system.

The proposed 2010 constitution was good to go. The political elite, believing that it would be a useful tool in the waging of their battles for power, did not raise major questions around the structure of the executive and decentralisation. As a result, the 2010 constitution was adopted through a popular vote in a referendum in August 2010, and was promulgated shortly thereafter.

Enter the BBI

The first disappointment, at least for Raila and his supporters, arrived in 2013.

Raila Odinga lost the presidential election by a slight margin under the 2010 constitution to a new (Jubilee) alliance led by Uhuru Kenyatta and William Ruto. This was repeated in 2017, when Raila again lost to Uhuru amidst reports of irregularities during the transmission of results.

Despite his considerable political influence over vast swathes of the country, Raila held no public office between 2013 and 2017. In 2017 he had successfully contested Uhuru’s presidential victory at the Supreme Court and proceeded to boycott a repeat poll, citing lack of a competent and impartial electoral commission.

Two months before the two leaders met and shook hands on the steps of Harambee House, launching the BBI as a result, Raila had also made real his threat to take a symbolic presidential oath in defiance of Uhuru as the “people’s president”.

Meanwhile, 76 people, including ten children, had died during opposition protests by the time Uhuru was sworn in for his second term as president. Pressure from civil society organisations and the international community to find a political settlement was piling. A debt-burdened economy was threatening to stall. Uhuru, like former President Mwai Kibaki before him, was probably worried about tarnishing his own legacy.

It was within this context of lack of political trust amongst the political elite that far- reaching constitutional reforms saw the light of day, culminating in the Kenya 2010 constitution.

It was in this context that the BBI process came about — to create additional positions within the executive so as to accommodate, essentially, more ethno-regional elites that, as Kenyan history has shown, are often useful in legitimising a political regime.

In sum, one could argue that the BBI proposals were, and still are, meant to curb the excessive elite fragmentation that has marked the country’s political history since the 1980s and 1990s in order to produce the elite pact of domination that existed during the 1960s and 1970s.

In fact, before the Constitutional and Human Rights Court complicated the BBI process by declaring it unconstitutional and null and void, the BBI report had yet again tightened control around the presidency. If successful, the president would get to appoint a prime minister from parliament, who will also be the leader of the largest political party or the largest coalition of political parties. The president will also appoint two deputy prime ministers and cabinet ministers drawn from within and outside parliament. The report had also recommended the disbandment of the National Police Service Commission and the creation of a National Police Council to be chaired by a cabinet secretary, that is, a presidential appointee. It had also established the office of an ombudsman within the Judiciary, to be appointed by the president.

As Uhuru Kenyatta and his allies continue to wish for the return to a more “orderly” past, where a few individuals with disproportionate political and administrative power could decide the fate of the entire country, it would be to their advantage to know that that system of elite domination carries inherent contradictions.

The more the political elite expands, the more we shall witness fragmentation within its ranks.

As this piece has shown, at its worst (and as was the case during the post-election violence of 2007-8) elite fragmentation births legal and institutional transformations, such as the 2010 constitution. Put differently, the more the political elite becomes busy fighting amongst itself for resources at the disposal of the state, the more constitutional transformations the country will see.

The more the political elite expands, the more we shall witness fragmentation within its ranks.

In my view, the BBI judgement, the current limitations placed on the president and the executive by the constitution, the restiveness within Uhuru’s political base, and the associated political realignments in the run-up to the next general elections in 2022, should all be understood within this framework.

–

This article is part of The Elephant BBI Judgement Series done in collaboration with Heinrich Böll Stiftung (HBF), Dialogue and Civic Spaces Programme. Views expressed in the article are not necessarily those of the HBF.

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

Follow us on Twitter. Uhuru's Legacy

By Gado Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

Follow us on Twitter.

Uhuru's Legacy

By Gado The 2010 constitution placed an onerous responsibility on the judiciary. That responsibility is to check that the exercise of public power is done in a manner that is compliant with the constitution. The constitution brought everyone, including the president – in both his capacities as the head of state and head of national executive – under the law. Hence, the judiciary has the final word when called upon to determine whether anything done or said to be done by anyone in the exercise of public power is constitutional.

To ensure that judges and magistrates can perform this task, the 2010 constitution created a strong architecture to secure judicial independence. In a nutshell, judicial independence simply means creating the necessary guardrails to ensure that judges and magistrates are and feel fully protected to make the right decision without fear of reprisal and that the judiciary has the facilities it needs to create an enabling environment to facilitate judges and magistrates’ abilities to undertake that core mandate. Ordinarily, the critical aspects of judicial independence include decisional, operational/administrative as well as financial independence.

Operational independence safeguards the ability of the judiciary to run its affairs without interference from other arms of government or from anyone else. Financial independence on the other hand ensures that the judiciary is well funded and fully in control of its funds so that its core duty (decision-making) is not frustrated by either lack of funds or the possibility of a carrot–and-stick approach where the executive dangles funding to extract the decisions it wants. In this regard, the constitution creates a judiciary fund and places it under the administration of the judiciary. Unfortunately, the national government and the treasury have continued to frustrate the full operationalisation of the judiciary fund.

Centrality of an individual judge’s independence

Importantly, the foundational rationale for judicial independence and its different facets is securing the decision maker’s (judge and magistrate) individual independence. This is commonly referred to as decisional independence. In the end, the judiciary exists for only one reason: to adjudicate disputes. In this regard, the person who is charged with decision making is the one who is the primary beneficiary of judicial independence. Of course, ultimately, everyone benefits from an independent judiciary.

Still, the constitution has specific and high expectation of the decision-maker, including that he or she makes decisions based only on an objective analysis of the law and the facts. The decision maker must not be mesmerised or cowed by power. He or she should never be beholden to power – in the present or the future. Simply put, under the constitution, a decision maker should never have to think about personal consequences that he or she may suffer for making a decision one way or another as long as that decision is based on an honest analysis of the law and the facts. Put a bit differently, the decision maker should never have to make (or even think of calibrating) his or her decision to please those in or with power – either within the judiciary or outside it – with the expectation that it will help him or her to obtain professional favours, promotion or to avoid reprisals.

And this is why Uhuru Kenyatta’s cherry-picking of who should or should not be appointed judge is the greatest threat to judicial independence in Kenya.

But first a quick word on what the constitution says about the process of selecting, appointing and disciplining judges.

Selection and disciplining of judges

Before 2010, the president played a controlling role in the selection of judges. This meant that the surest way to become and remain a judge was by being in the good books of the president and his handlers. The result was that the judiciary was largely an appendage of the executive – and could hardly restrain the abuse of public power by the president or other ruling elites. The 2010 constitutional provisions on the judiciary were deliberately designed to eliminate or highly diminish this vice.

The power to select judges was given to the Judicial Service Commission (JSC), a body representative of many interest groups, the president key among them. Constitutionally, the president directly appoints three of the 11 JSC members: the attorney general and two members representing the public. But with his usual ingenuity at subverting the constitution, Uhuru Kenyatta has added to this list a fourth – by telling the Public Service Commission (PSC) who should be its appointee. Regardless, while there are always endless wars to control the JSC especially by the executive, the many interests represented complicate a full takeover of the JSC by the executive or any other interests. And that is partly what the constitution intended to achieve. The law – which the court has clarified numerous times – is that once the JSC has nominated persons to be judges, the president’s role is purely ceremonial, and one that he performs in his capacity as head of state. He must formally appoint and gazette the appointment of the judges. No ifs, no buts.

This is why Uhuru Kenyatta’s cherry-picking of who should or should not be appointed judge is the greatest threat to judicial independence in Kenya.

In fact, the law further clarifies that not even the JSC can reconsider its recommendation once it has selected its nominees. There is a good reason for this unbendable procedure – it helps to insulate the process from manipulation especially once the JSC has publicly disclosed its judge-nominees. Still, the constitution preserves for the president, the JSC and citizens the option of pursuing a rogue nominee by providing the realistic possibility for the initiation of a disciplinary and removal process of a judge even after appointment if there are legitimate grounds for such action. In this regard, the JSC also has the responsibility to discipline judges by considering every complaint made against a judge to determine whether there are grounds to start proceedings for removal. It is to be noted that the president has more substantive powers in relation to the removal of judges. This is because if the JSC determines that there are grounds for the removal of a judge, the president’s hand is mostly unrestrained with regards to whom he appoints to sit on the tribunal to consider whether a judge should be removed. Unfortunately, there is an emerging trend that indicates that Uhuru undertakes this task in a biased manner by subjectively selecting tribunal members who will “save” the judges he likes.

The injustice of cherry-picking

Now, back to the injustices of Uhuru’s cherry-picking of judges for appointment.

The injustice is horrific for both the appointed judges and those who are not appointed, especially those of the Court of Appeal. Under the 2010 constitution, you do not become a superior court judge by chance.. For High Court judges nominated to the Court of Appeal, this is earned through hard work, countless sleepless nights spent writing ground-breaking judgments and backbreaking days sitting in court (likely on poor quality furniture) graciously listening to litigants complain about their disputes all day, and then doing administrative work to help the judiciary keep going. All this while maintaining personal conduct that keeps one away from trouble – mostly of the moral kind. Magistrates or other judicial staff who move up the ranks to be nominated judges endure the same.

The injustice is horrific for both the appointed judges and those who are not appointed, especially those of the Court of Appeal

If ever there was a list of thankless jobs, those of judges and magistrate would rank high on the list. It is therefore completely unacceptable that a faceless presidential advisor – probably sitting in a poorly lit room with depressing décor and a constantly failing wifi connection, and who likely has never met a judge – can just tell the president, “Let’s add so and so to the list of judges without ’integrity’. And by the way, from the last list, let’s remove judge A and add judge Z”. Utterly unfeeling and reckless. Worse, the judge is left to explain to the world what his/her integrity issues are when he or she knows nothing about them.

Psychological tyranny

Cherry-picking also creates a fundamental perception problem. Kenya’s Supreme Court has confirmed that perception independence is a critical element of independence. For litigants appearing before the judges who were appointed in cases involving the president or the executive, it will be hard to shake-off the stubborn but obviously unfair thought that the judge earned the appointment in order to be the executive’s gatekeeper. That is what minds do; they conjure up possibilities of endless, and at times, conspiracy-inspired thoughts. Similarly, those who appear before a judge who was left out will likely believe that the judge – who decides a case impartially but against the executive – is driven by the animus of non-appointment. And you can trust the president’s people to publicly say as much and even create a hashtag for it. Yet such perceptions (of a judge who is thought to favour or be anti-executive) are relevant because justice is both about substance and perception.

And that is the psychological tyranny of Uhuru’s unconstitutional action – for both the judges that have been appointed and to those who have not. It is, indeed, a tyranny against the judiciary and, in a smaller way, against all of us. Perhaps just as Uhuru intended it to be. Published by the good folks at The Elephant.

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Uhuru's Legacy

By Gado

On May 13 this year, a five-judge bench of the Kenya High Court struck down a state effort to amend Kenya’s 2010 Constitution. With the possible exception of the 2017 ruling of the Supreme Court of Kenya overturning the re-election of Mr. Uhuru Kenyatta – a first for Africa – no judicial opinion has been more consequential. The ruling struck like a thunderbolt and upset Mr. Kenyatta’s legacy, and possibly upended his succession plans. It is not an exaggeration to say that Mr. Kenyatta has pegged his tenure on the fate of the Building Bridges Initiative (BBI), a project ostensibly designed to rid Kenya of perennial electoral violence, rampant corruption, and ethnic and sub-national exclusion and marginalization.

From the “Handshake” to BBI

In 2017, Mr. Kenyatta sought re-election against a strong challenge from Mr. Raila Odinga, without doubt Kenya’s key opposition figure. Mr. Odinga had run against pro-establishment candidates before, each time coming up short. On several of those occasions, Mr. Odinga had claimed fraud and ballot-stuffing. But each time, he was eventually declared the loser. That pattern repeated itself in 2017. Citing irregularities, the Supreme Court annulled that election and ordered a fresh vote. Mr. Odinga boycotted the re-run, assuring Mr. Kenyatta of victory. Mr. Odinga refused to concede and swore himself in as the “people’s president.” Deadly violence, often with ethnic undertones, broke out. The economy was paralyzed. Then on March 9, 2018, Mr. Kenyatta and Mr. Odinga shocked the nation by declaring a truce.

The rapprochement between Kenyatta and his archrival Mr. Odinga came to be known as the “Handshake.” Out of it grew BBI, which they termed a historic initiative to right Kenya’s past wrongs and firmly put it on an irreversible path to full citizenship and belonging for all its diverse peoples. Mr. Kenyatta and Mr. Odinga unilaterally appointed the Building Bridges Initiative Task Force, a fourteen-member body composed mainly of status quo apparatchiks and politicians. In October 2020, the task force released its report and a constitutional amendment bill. Articles 255-257 of the Constitution provide for the process of amending the Constitution through a referendum after approval by Parliament and a simple majority of Kenya’s 47 counties.

In March 2021, Parliament approved the BBI bill. However, groups of NGOs and citizens sued the State, the legislature, and the Kenya’s Independent Electoral and Boundaries Commission (IEBC) to stop them from conducting the referendum. The suit alleged, inter alia, that the process of the BBI was illegal and unconstitutional. It argued that the BBI bill would usurp the sovereignty of the people and abridge the constitution. They submitted further that Parliament was powerless to pass bills that would negate the “basic structure” doctrine which allows only the people – not the legislature – to fundamentally alter the basic logic and architecture of the constitution. This last point was a novel one in Kenyan jurisprudence because no one had hitherto invoked it in live proceedings.

Kenya’s Finest Jurists

Sitting at the High Court in Nairobi to hear the petition were arguably Kenya’s finest jurists. The bench was led by Presiding Judge Joel Ngugi. Justice Ngugi, a Harvard-trained academic, had been a professor of law at the University of Washington School of Law in Seattle, one of America’s finest law schools. He is also a reputable member of the school of thought known as TWAIL, or Third World Approaches to International Law. He is recognized as a leading intellectual in Kenya and elsewhere. Early in his judicial career, he led the Judiciary Transformation Institute (JTI) when Dr. Willy Mutunga was Chief Justice in 2012-2016. His judicial rulings have been original, progressive, and stretch the scope of human rights.

Justice Ngugi was joined on that bench by four other judges, including Justice George Odunga, a leader in expanding the rights of the citizenry against an illiberal state bend on curtailing the rule of law. Justice Odunga is one of a small cadre of brilliant and courageous judges who are leading a judiciary long held captive by executive overreach and corrupt cartels to a more independent posture. The others on that bench – Justices Chacha Mwita, Teresia Matheka, and Jairus Ngaah – have themselves been lauded for standing up to an executive prone to the abuse of power. The bench had been appointed by former Chief Justice David Maraga, who had often clashed with Mr. Kenyatta for failing to carry out court orders.

The ruling was a shocker when it came down. In a scathing – even disdainful – ruling, the judges uprooted tree, stem, and branch of the entire BBI process. The bottom line was that the judges viewed the whole BBI process as the fruit of a poisoned tree, and therefore wholly unsalvageable as a constitutional matter. In a tongue lashing the likes of which Kenyans were unaccustomed to, the court laid waste to every one of the basic arguments for the BBI initiative. After the five-hour ruling, there was hardly anyone who thought the BBI project could be revived. Its proponents were shell- shocked, and its opponents supremely elated. The state and the initiative’s backers have gone to the appeals court to reverse the ruling.

A Jurisprudential Milestone

Several of the court’s findings deserve special attention. The court agreed with the petitioners that the BBI initiative was irregular, illegal, and unconstitutional. First, in the televised ruling, the judges held that Mr. Kenyatta had failed the integrity test of leadership and violated the norms contained in Chapter Six of the Constitution. This is significant because no one should hold office – and is liable to impeachment if they do – once they are found in violation of Chapter Six. It is not clear what the political implication for Mr. Kenyatta is on this finding. But the judges warned that Mr. Kenyatta could be sued in his individual capacity. The import was to pull the moral rug from under him.

Secondly, the judges rubbished the five million votes collected from citizens by the BBI task force to support the referendum push. They ruled that the initiative was not started, or led, by citizens. The court ruled that only the people, not the government, can initiate and conduct a process to amend the constitution through a referendum. In other words, the state cannot hide behind a murky process to take away the people’s will.

Thirdly, the judges held that the IEBC – several of whose members had resigned – was not properly constituted and therefore lacked quorum to conduct any legal business. As such, any decisions that the IEBC had taken, or would take, on the BBI process were null and void.

Fourth, the court ruled that only a people-driven initiative (exercising constituent authority) as opposed to a state-driven exercise (exercising constituted authority) can change the fundamental architecture of the Constitution. Thus, the “basic structure” doctrine prohibits the state from taking a machete to the Constitution and mutilating its foundational assumptions, norms, and basic edifice. The larger meaning of this finding is a jurisprudential milestone for Kenya because it disallows the piecemeal and selfish amendments to the constitution by Parliament in cahoots with the executive. It says only the people have the power to fundamentally reconstitute the state either through enacting a wholly new constitution, or carrying out deep reforms of the extent one. This preserves the notion of popular sovereignty.

Fifth, the court held that Parliament did not have the power to allocate 70 more constituencies in the BBI bill. The judges ruled that only the IEBC – and no other entity – could allocate new constituencies. The largest share of these additional constituencies were allocated to Mr. Kenyatta’s Kikuyu ethnic strongholds as way of enticing his supporters to support BBI. Mr. Kenyatta has been locked in a battle of supremacy in his backyard against Mr. William Ruto, the Deputy President. Mr. Kenyatta had vowed to support Mr. Ruto, a Kalenjin, as his successor, but then reneged. Mr. Ruto then went behind Mr. Kenyatta’s back to peel away a large chuck of the Kikuyu electorate and turn it against BBI. Do or Die

For now, the state and the backers of the BBI bill have gone to the Court of Appeal seeking to overturn the High Court’s historic ruling. It is anyone’s guess what the appellate process will yield. Anything is possible given the capture of large sections of the judiciary by the executive. The appeal could result in a reversal in whole, or in part, of the High Court ruling. Or it could wholly reaffirm the lower court’s ruling. One thing is undeniable – it is now an open question whether a referendum is even feasible given the election calendar in 2022. Time may simply run out on the BBI clock. Mr. Ruto and his supporters have celebrated the court’s ruling.

For Mr. Kenyatta and Mr. Odinga, the dim prospects of the Bill process could upend any succession plans they have hatched together. Political analysts believe that Mr. Kenyatta could back Mr. Odinga for the presidency next year against Mr. Ruto. The BBI agenda could’ve been an important calculus in that matrix. One of its proposals was to expend the executive to include a prime minister and two deputy prime ministers. These offices would have been an important carrot to bring on board a broader ethnic coalition of major communities to support Mr. Odinga. It is clear that Mr. Kenyatta and his family and political orbit cannot risk a Ruto presidency because of the bad blood between the two men. BBI for him is a do or die proposition. Will the courts rescue, or sink, him?

–

This article was first published in Verfassungsblog.

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Uhuru's Legacy

By Gado Published by the good folks at The Elephant.

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Uhuru's Legacy

By Gado Mr. President

I have elected to speak elaborately and strongly on this issue because when apparently innocuous and blithe breaches to the Constitution begin to occur, especially from the highest office in the land, they signal a dangerous dalliance with impunity. This is particularly so when these occurrences are intentional, persistent, defiant, and brazen – fuelled by an inexplicable determination to overrun the barricades of Kenya’s constitutional order.

There is a reasonable presumption that anyone seeking public office would be familiar with the Constitution. The presumption is even stronger that such persons have read, re-read, and understood provisions specific to the office they seek and, consequently, fully comprehended the allocation and demarcation of power and authority thereto. If they haven’t, then they don’t deserve to be in those offices in the first place. If they have, they have an obligation to respect every provision. That’s the meaning of public officers taking an oath before assuming office to protect, defend, and promote the Constitution, and to abide by all other laws of the Republic.

Nothing in the oaths says, ‘I will obey and protect only those aspects of the Constitution that I find convenient and self-fulfilling; so help me God’. The oath is comprehensive, total, and unqualified; and its administration is not an exercise in jest, but rather a very solemn commitment to conscience and to country; to self and to the public, in the performance of public duty held in trust for the Kenyan people. If any public officer does not like the powers the Constitution donates to them, or find the exercising of those powers annoyingly inconvenient, they have no business continuing to occupy those offices. Resignation and early voluntary retirement are readily available options that the Constitution merrily provides, in order to protect itself from individuals who may find further fidelity to its edicts a burdensome enterprise.

The provision on the appointment of judges is clearly articulated in Article 166, as well as the Judicial Service Act. The JSC discharged its mandate properly and completely in 2019 by recommending for appointment 41 judges. The president, by dint of plain, clear constitutional provisions, and numerous court orders, is obliged to appoint all the recommended judges without hesitation, review, or negotiation.

It is disappointing that this standoff, needlessly occasioned by presidential obduracy, has recurred. Sadly, it has done so in a manner that lowers the esteem of the office, undermines the rule of law, and erodes public confidence both in the elevated majesty of statecraft, and in the granularity in administration of justice.

In 2015, when this issue first emerged, the JSC and the president openly discussed the matter, and agreed on a framework that not only respected the constitutional processes but also acknowledged the unique nature of the presidency. Under this framework, it was agreed that, if the president has any adverse reports on any shortlisted candidates for judgeship, he, both in his privileged position as Head of State, and as a citizen of Kenya and a member of the public, would share that report with the JSC at that stage (not later) in the recruitment process. However, in the interest of fairness, these reports or allegations – just like all the others the JSC receives – would be put to the candidate for his or her response, before the Commission makes a determination on the suitability of that candidate. This is such a fair and common-sense approach that has worked before. In the recruitment of the 41 judges, the president did not present any adverse reports at the appropriate stage, leaving JSC with no option but to make recommendations for appointment.

I rehash this account in the public interest, and because statesmanship requires honour. It abjures petulance. The president’s conduct in this matter has been beneath the dignity of that high office. For two years he has subjected several advocates to untold personal suffering for no reason at all and called into question the integrity of serving judges and judicial officers without any due process. That the president has finally gazetted 34 of the 41 (one had in the meantime died) advocates recommended two years ago following an inexplicable and dishonest delay, speaks to an exercise of power that is egregious, reckless and insensitive.

Most disturbing is the president’s decision to omit the names of six judges and judicial officers from the list. Strikingly, the presidential ‘list of hate’ has even mysteriously changed, meaning that the objection to the judges’ nomination is driven more by personal pique rather that principle. That is not the way to conduct the serious business of state.

The scientific formulation in the provision of the Constitution on the appointment of judges was intended precisely to be an antidote to this kind of whimsical and capricious presidential conduct such as is being seen in ugly display in this matter.

State offices are not the personal property of any individual or officer. All Kenyans have a right to seek to serve in the manner prescribed by law and no individual or authority can arbitrarily renounce, withdraw, or abrogate this right.

The constitution is clear on the mechanisms for raising any issue the president or any other person may have against a sitting judge or judicial officer at whatever level. The JSC has been tested on these issues and has dealt openly and fairly with complaints against judges of ranks even higher than the Court of Appeal. Even Chief Justices, myself included, have had to answer to public petitions in an open and fair process — and that is as it should be. That the president has delayed appointments for two years without presenting any evidence to the Commission in spite of active and repeated solicitation points to bad faith, and most likely, absence of any actionable information on the judges.

And this is not the time to commence muck-racking adventures in a feeble and abominable attempt to besmirch the character of the judges and judicial officers. The president must resist the temptation to be garlanded in the pettiness of performing power, particularly by those who have built a thriving pettiness cottage industry, completely consumed by the pursuit of personal vendetta, at the expense of the national good and Kenya’s fledging constitutional democracy.

It is urgent that the president immediately appoints the six judges, many of whom are exceptional, because that’s what fairness, common decency, the rule of law and the Constitution require. The independence and accountability of the judiciary is not negotiable. And in the fullness of time, everybody gets to learn this lesson — some rather too painfully, too late, having played a part in undermining it.

Mr President, you bear a burden of history to do the right thing for Kenya’s Constitution, her institutions, and the general public. Discharge this burden. Simply do the right thing.

Mr. President I remain sincerely,

Willy Mutunga

Chief Justice & President, Supreme Court of Kenya, Republic of Kenya, 2011-2016

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Uhuru's Legacy

By Gado Lady Justice Martha Koome’s appointment as our Chief Justice is causing me angst. It gives me hope yet wrenches something in my gut. Her reputation as a defender of human rights is unquestioned. Yet a confession during her interview by the Judicial Service Commission showed a bias towards government. In Requiem for a nun, William Faulkner warns, “The past is never dead. It’s not even past”.

There is Koome’s activist past, her legendary past as the chairperson of the Federation of Women Lawyers (FIDA). There is the Koome who, from 2001, led civil rights organisations in securing women’s participation in the constitutional review. She frightened the Moi era regime which deemed her ideas dangerous. Koome pushed for children and women’s rights, sought the release of people locked up on trumped-up charges, those whose rights the regime had violated. That they did not lock her up as well is inexplicable. That possibility frightened her then. Not anymore.

Justice Koome hasn’t fought the government in a while. No sooner had she become a judge than she jettisoned activism. As she told the JSC panel, her work at FIDA was situational. As a judge, she said, “I have changed completely. . . . I am government, as the Chief Justice of the Republic of Kenya . . . I head the other part of government.” This is her immediate past. And it makes many anxious.

Writing on race equality in the America of the 1940s, Faulkner’s message was that some day, the people would rise above these divisions and recognise the ties that bind them. They would recognise the fundamental lie of racism. But the protagonist, with his very Southern attitudes and bigotries, fails that test, and hence the past is never dead. For Justice Koome, which of these pasts is past?

Our main worry is something that her 18 years as a judge have revealed. Petitioning the JSC to reject Koome’s nomination, the President of the Law Society of Kenya Nelson Havi argued that her appointment would weaken the independence of the judiciary. Havi cited a questionable Saturday night sitting of the Court of Appeal during which Hon. Justice (rtd.) E.M. Githinji, Hon. Justice Fatuma Sichale and Hon. Justice M.K. Koome delivered a judgment ex parte (in the interests of one side only), a final order reversing a High Court ruling in the case of the Republic v IEBC Khelef Khalifa and another (2017) that had been delivered that very morning.

If Justice Koome is to deliver justice, she will have to find her true north again, her human rights past. Upholding justice must not be situational, Madam Chief Justice. Justice is about equal rights, and access to justice for those denied it. Delivery of justice must start within the judiciary.

While interviewing Justice Koome, Commissioner Everlyn Olwande spoke for the judges and magistrates when she expressed her fears using piercing allegory: Is the judiciary fast hurtling towards another purge? There was the radical surgery under Justice Aaron Ringera, and the judicial vetting that saw a host of judges evicted. The signal has always been to claim corruption within the judiciary.

In 2019, the state moved its war on graft to the judiciary. The Chief Public Prosecutor, Noordin Mohamed Haji, brought a charge against the Deputy Chief Justice Philomena Mwilu, that she had “abused her office for personal gain, undermining public integrity in the judiciary”. Haji claimed he had instituted criminal proceedings against her in the public interest as he had gathered enough evidence for “a reasonable prospect of conviction”.

But observers saw through the scheme. If the case had not been brought in order to force the JSC to eject the DCJ from office, then it was in fulfilment of the “we shall revisit” promise made by the president to the judiciary. This, in my view, was the veiled fear in Commissioner Olwande’s questions. It would be tragic if the Chief Justice were to cede her power to the executive.

The only hope the judiciary can hang on to is Justice Koome’s statement that, “An institution like the Judiciary should be self-cleansing . . . from within and . . . not from without,” to “ring-fence the independence of the judges, the judges’ decision making and the institution,” she said.

Chief Justice Koome’s major challenge will be to deliver justice to Kenyans. With a compromised legislature and an executive that is working on its own agenda, as the custodian of law, the judiciary remains the only guardrail protecting Kenya from tumbling down the precipice of chaos.

It would be tragic if the Chief Justice were to cede her power to the executive.

Governments have a propensity to oppress and Uhuru Kenyatta’s government isn’t unique in the little regard it has for justice. Justice Koome inherits a judiciary that has been battered to a pulp by the regime; punitive budget cuts, disregard of the courts’ authority, derisive rhetoric. How else can we explain the president’s delay in appointing the 41 judges recommended by the the JSC in mid-2019? Chief Justice Maraga complained that the delay had made work difficult for the courts while Kwamchetsi Makokha argued that the president’s agenda was to diminish the stature of the judiciary.

I appeal to Chief Justice Koome’s faith to make the judiciary work for Kenyans and in this regard, an episode in Exodus 1 demands our attention since it a turning point in human history. Its heroines are two outstanding women, Shiphrah and Puah. The Pharaoh instructed these two midwives thus: “When you are helping the Hebrew women during childbirth on the delivery stool, if you see that the baby is a boy, kill him; but if it is a girl, let her live” (Exodus 1: 16). But they did not carry out the order: “The midwives, however, feared God and did not do what the king of Egypt had told them to do; they let the boys live”(1:17).

Commenting on the episode, Rabbi Jonathan Sacks termed it as “the first recorded instance in history of civil disobedience”. The two women refused to obey the order of their world’s most powerful man, an order they judged unethical and inhuman. Questioned by Pharaoh they explained: “Hebrew women are not like Egyptian women; they are vigorous and give birth before the midwives arrive,” (1: 19) to which he had no reply.

In refusing to follow the orders, Shiphrah and Puah showed that the ultimate sovereignty lies with God. The notion that sovereignty belongs to the people is a fallacy. Rabbi Jonathan Sacks argues that moral law transcends and may override the law of the state.

The judiciary remains the only guardrail protecting Kenya from tumbling down the precipice of chaos.

During the 1946 Nuremburg trials, the war criminals’ plea was that “they were merely obeying orders, given by a duly constituted and democratically elected government”. But for the new legal concept of a crime against humanity, the guilt of the perpetrators of the holocaust would have remained unestablished. Sacks observes that “The Nuremberg principle gave legal substance to what the midwives instinctively understood, that there are orders that should not be obeyed, because they are immoral.” So, any human order transgressing the will of God is by that fact alone ultra vires. Shiphrah and Puah were the first to teach humanity the moral limits of power.

We are a country, it seems, that is bankrupt of goodness. A space filled with the evil that we commit against each other. If we do not cooperate in shunning evil against others, a good judiciary will be as useless as a scarecrow after the harvest. We should do good because that is what a human being is supposed to do.

It confounds me how attractive evil is to others. We give undue attention to the whispers or the shouts of evil. Not that evil does not demand confrontation, but I wonder why it is so elevated. Toni Morrison, the winner of the 1993 Nobel Prize for Literature, noted that “Evil has a blockbuster audience; Goodness lurks backstage. Evil has vivid speech; Goodness bites its tongue.”

To understand goodness, Toni explored the term altruism, selfless compassion for the “other”. In her research, she learned something about altruism, its weight and its relevance in contemporary thought. What defined goodness for her was an incident that occurred within the Amish community of Pennsylvania in the United States. On the 2nd of October 2006, 32-year-old Charles C. Roberts arrived at the West Nickel Mines Amish School and ordered the male students to leave. He also allowed a pregnant woman and three women with babies to leave. Roberts then lined up 10 girls aged between 9 to 13 and shot them, killing five girls and injuring five others. Then he killed himself.

Although Roberts was not Amish, the community forgave him, refused to seek justice, demand vengeance, or even to judge him. They visited and comforted his widow and children, just as they embraced the relatives of the slain. In refusing to judge Roberts, the Amish community asserted that it was God’s place to judge. They said nothing or very little to outside inquiry, held no press conferences and submitted to no television interviews, only cautioning, “Do not think evil of this man.” They buried their dead, then attended the killer’s funeral the following day. Then they built a new schoolhouse, having torn down the old one.

Their silence following the slaughter, along with their deep concern for the killer’s family, seemed to Toni characteristic of genuine “goodness” or altruism and she became fascinated with the term and its definition.

Toni Morrison found that altruism is not an instinctive act of selflessness, but a taught and learned one. Altruism can also be used to enhance the ego in a desperate attempt to decrease self- loathing. Others have argued that altruism is embedded in our genes to enable the sacrifice of self for others. Such sacrifice for kin and/or community is innate, they claim, and is built into our genes, just as we hold individual conquest of others to be an instinctive drive that serves evolution.

This goodness can be learned. We can be taught goodness until it becomes a habit of helping strangers and/or taking risks for others at our expense. We can override that instinct which inclines us to protect only our own kin or group and broaden it to include all the people we meet, an unquestioning compassion for all.

Justice John Khamoni (rtd) learnt this goodness and the Law Society of Kenya recognised him for his distinguished service in the administration of justice in 1999, an award which the then Chief Justice barred him from receiving. In 2015 Justice Khamoni was awarded the Justice C. B. Madan prize for his contribution to the administration of justice. Justice Khamoni is in my view an example of altruism within the judiciary.

We can override that instinct which inclines us to protect only our own kin or group and broaden it to include all the people we meet.

Justice Khamoni’s acts of goodness were carried out at significant risk to his career in the judiciary. In November 1991, at the peak of the calls for political reforms, the movement’s leaders were arrested and charged. A magistrate had refused the bail applications for James Orengo and Luke Obok and the case had come before the newly appointed Justice Khamoni at the High Court in Kisumu. In that charged atmosphere, Khamoni considered the refusal to grant bail on purely legal grounds and both applicants were granted bail.

Justice Khamoni’s vision of the criminal justice system was one that was averse to oppression. He held that the High Court had a duty to prevent vexatious and oppressive prosecutions, instituted for an improper purpose and hence an abuse of the court.

The two midwives, Shiphrah and Puah, acted like good people. As did Justice Khamoni. By their acts we learn that they “feared God”, a generic description of those who have a moral sense.

Do we wonder why Hon. Amos Wako changed during his 20 years as Kenya’s Attorney General? He served as the LSK chairman from 1979 to 1981 and was a member of the UN Human Rights Committee between 1985 and 1992. The honour accorded him and the awe in which he was held reached beyond Kenya to places far away and in countries where the intelligence of Africans is the source of much amusement. Expecting that he would check the Nyayo era excesses turned out to be a futile dream. As head of the state law office, he oversaw the torture and oppression of Kenyans agitating for multi-party politics. Wako witnessed the wanton abuse of human rights without flinching. And although Kenya achieved multi-party rule and change of constitution during his tenure, the KANU government tethered him to the Goldenberg scandal during his entire time as Attorney General which led to his being sanctioned by the US government.

Do we wonder why Hon. Amos Wako changed during his 20 years as Kenya’s Attorney General?

The government is a toxic soil. This we now know. This soil is bad for certain kinds of flowers, to borrow the words of Claudia at the end of Toni Morrison’s The Bluest Eye. Certain seeds this soil will not nurture, certain fruit it will not bear. Can Chief Justice Koome thrive in this soil?

When we say the past is just a prologue, we mean the past should not enslave us; rather we spring into the bright day from lessons learnt from that dark past. Prologue because we follow those such as Shifra and Puah who paved the way.

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