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Kenya’s Supreme Court Justice Willing To Pay The Ultimate Price For Kenya And Africa

“If leaders are tired of having a strong and independent judiciary, they should call a referendum and abolish it all together,” a seemingly frustrated Justice David Kenani Maraga of the Supreme Court of Kenya decried on September 19.

As Kenya’s Chief Justice and President of the Supreme Court, Maraga’s lament came two weeks after his Court nullified the August 8 presidential elections and ordered a repeat in sixty days. For the uninitiated regarding the political drama taking place in Kenya, in the two weeks following the Supreme Court’s history-making decision, the country’s President and his deputy scolded Maraga and his fellow justices, and promised to limit their judicial powers and independence, after the repeat elections scheduled for October 26 (the initial date was October 17).

As it has repeatedly done in the past, the Executive branch turned to its ethnic base for moral and political support and has convinced it that the Court “stole our victory,” a tactic the President and his deputy pulled from the criminal investigation facing them at the International Criminal Court (ICC) following the Post-Election Violence (PEV) in 2007.

In the second round of campaigns, the two principals have framed themselves as the victims of judicial tyranny, and they have persistently impugned the Court’s justices and even questioned their mental aptitude.

In lockstep with the Executive in intimidating the judiciary, the President’s electoral base has blockaded all roads leading to the Supreme Court; terrorized individual justices and anyone challenging his authority and legitimacy; pulled non-Kikuyus and non-Kalenjins from public vehicles along the Nairobi-Nakuru highway to maim them; and have vowed to “burn” Kenya if the repeat elections’ outcome does not favor their “son.” It is this context that informed the Chief Justice’s response.

Rather than submit to an overbearing and arrogant Executive branch, a precedent too familiar in sub-Saharan Africa and one that informs his predecessor’s legacy, a defiant Maraga reminded the Court’s antagonists that the judiciary is an arm of the government equal to the Executive and the Legislature, and he vowed to discharge its mandate in accordance with the country’s Constitution. Abdicating the Court’s traditionally cozy relationship with the Executive, Maraga censored the President and characterized his frequent attacks as “unlawful and savage in nature.”

He asked the Executive to stop dictating to the Court how best to perform its judicial functions. Setting a new pace the country has never witnessed since independence in 1963, Maraga warned that the judiciary would not work “in accordance with the whims and the desires of the Executive or Parliament.” In making this statement, Maraga probably read Article 160 (1) of the country’s Constitution, which affirms the Judiciary’s independence by forewarning that judges shall exercise their judicial authority subject only to the Constitution and the law and shall not be subject to the control or direction of any person or authority. Article 131 (1) (e) calls for the President to be “a symbol of national unity,” and (2) (c) asks him to “promote and enhance the unity of the nation,” but Maraga argued that the President’s “mindless acts” have imperiled the justices’ security.

Acutely aware that Kenya’s judiciary lacks a robust infrastructure through which to mobilize for public support against a government bent on curbing judicial progress, Maraga turned to all Kenyans of “goodwill to stand up for the independence of the judiciary.”

Framing the justices’ cause to defend the Constitution in ways reminiscent of the second-century Roman Christian martyrs, Maraga concluded with a somber but audacious declaration, suggesting that they were “prepared to pay the ultimate price to protect the Constitution and the rule of law,” and warned that the Court would annul the results of the repeat election if the process abdicates the Constitution.

Similar to other political arms of governments in sub-Saharan Africa, Kenya’s Executive branch has consistently plotted to employ its authority and numerical strength in Parliament to remove the judicial security of tenure as well as presidential term limits. Although this plot is hardly unique in Africa, it is a distinctive badge of the continent’s democracy.

What is probably unique in Kenya’s history is the judiciary’s refusal to submit to intimidation, marking the first time in Africa that the Judicial branch has invalidated a presidential election result and repudiated the Executive. This dramatic encounter promises to restore the rule of law that has evaded post-colonial Kenya, in particular, and sub-Saharan Africa, in general. In admonishing the Executive, Kenya’s Judicial branch stressed to the President that respecting it and other government institutions is not optional but mandatory.

What does Maraga’s rebuke and appeal for citizens’ help mean for Kenya and Africa? To play tough is one thing, but to stay free and relevant is a different ballgame. First, to maintain judicial freedom and leverage power requires sub-Saharan Africa’s justices to consider enlisting the ordinary people’s support in dismantling the big men syndrome that erodes the continent’s socioeconomic and political contours.

Throughout the continent, political elites have silenced dissenting voices and created spaces devoid of robust legal minds, and they are undermining critical infrastructures required for upward mobility. Although Constitutions authorize judiciaries to dispense justice to all, irrespective of status, African justices have often overlooked this critical article of the law, yet they expect the small man to act on their behest against domineering  Executives. Secondly, although the present conflict in Kenya has no end in sight, it provides the vista through which the judiciary should imagine logical steps that lead to removing the imaginary wall separating ordinary citizens from justice.

Tearing down this wall would undoubtedly instill a sense of judicial responsibility in citizens, and probably inspire them to protect judicial independence the next time it faces an arrogant Executive. As currently constituted in Africa, the relationship between the judiciary and the “people” who endow it with the “authority” to perform is tenuous, at best, and non-existent, at worst.

Kenya’s example is a case study for sub-Saharan Africa, and Maraga’s reproof offers a template for justices in Africa experiencing a similar siege. For judicial independence in the continent to hold, justices must resist bully Executives, even if their courageous actions lead to paying the ultimate price.

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