A political history of courts and elections in Kenya
Supreme Court of Kenya judges during the hearing of the presidential petition at Milimani on September 2, 2022.
What you need to know:
- The main divisions that were witnessed in Willy Mutunga’s Supreme Court, therefore, were ideological, not political.
- These differences thinned a little during the tenure of Chief Justice David Maraga.
- From then on, the pattern became so mixed that in the current Supreme Court, it is difficult to tell the progressives from the conservatives.
This past week, many people across the world have been following the proceedings of the 2022 Kenya presidential election petition at the Supreme Court.
Across East Africa, the Kenya election petition continues to remain a trending topic.
The social and mainstream media and public spaces in all the countries in the region have been awash with petition stories, questions by judges, and how the lawyers make their submissions.
Viewers were glued to their television screens to watch what looked like drama.
And indeed the discussions have been dramatic, full of good and ugly stories depending on who you talk to.
But Kenya’s Supreme Court has witnessed this drama before. Since 2013, all presidential elections have aroused a dispute that ends at the Supreme Court.
The 2017 election was annulled. A fresh poll was conducted but the main opposition party declined to participate, citing a lack of reforms by the electoral management agency.
In 2007, the main opposition party also refused to file a petition following a dispute over the election result.
The opposition argued that the Judiciary was not independent; it was staffed with judges appointed on the basis of political considerations.
The connection between courts and politics, however, has been a recurring theme in Kenya for a long while.
This connection has origins in the colonial days and sharpened after independence.
The Kapenguria Six
One of the glaring examples of the connection between politics and courts in the colonial era was the arrest and the trial of the Kapenguria Six.
The arrest of Mzee Jomo Kenyatta — who would later be Kenya’s first president — Bildad Kaggia, Kung’u Karumba, Fred Kubai, Paul Ngei and Achieng’ Oneko came after the Mau Mau killed Chief Waruhiu in October 1952.
By this time, Mau Mau oathing was spreading in Mt Kenya. Chief Waruhiu was one of the prominent collaborators of the British colonial administration.
The Mau Mau gunned him down and the government interpreted this as a sign of things getting out of control.
At the funeral of Chief Waruhiu, Mzee Kenyatta and Governor Evelyn Baring, who was about one week old in the country, locked eyes over the casket.
Governor Baring, the head of the colonial government in Kenya, thereafter mobilised the administration to face off with the Mau Mau. A state of emergency was declared and Mzee Kenyatta and other senior politicians were arrested.
It is the trial of Kenyatta and his colleagues — the Kapenguria Six — that laid bare the fingerprints of government interference just to ensure that the six would be found guilty.
To ensure this was done, Governor Baring had to look for a friendly judge. The governor saw a friend in the name of Justice Ransley Thacker.
But Justice Thacker had retired and, therefore, was not available. Governor Baring had to think about an inducement, a bribe, to get Justice Thacker to the court.
He paid more money than what he got in retirement benefits as an inducement. The government then concocted some lies and made them truths.
The lies became the main evidence upon which the six Kenyan freedom fighters were jailed in Lodwar.
Kenyatta Judiciary
Mzee Jomo Kenyatta was a victim of a politicised and corrupt Judiciary during the colonial period.
But after becoming President, he would use the courts and judges to advance his interests.
He would use the courts for the benefit of friends and use the same courts to punish those he did not like.
He had ingenious ways of twisting the laws, through the courts, to help friends as well as punish critics.
A good example was how he helped one of his Kapenguria six friends, Paul Ngei.
In 1974, Paul Ngei won the Kangundo parliamentary seat, but Henry Muli, his main rival, filed a petition.
Muli argued that Ngei had administered an oath to bind voters to him (Ngei), which scared voters.
The court found Ngei guilty of an election offence and barred him from presenting himself for election in the subsequent by-election.
Mzee Kenyatta was worried about his friend Ngei not getting back to Parliament.
He summoned Attorney-General Charles Njonjo and asked him to draft a constitutional amendment to give the president power to pardon anyone found guilty of an election offence and to annul the results of an election court.
Parliament amended the Constitution to give the President these powers. Immediately after this was done, Mzee Kenyatta pardoned Ngei who then ran and won the by-election.
Moi and Kibaki Judiciary
If Mzee Kenyatta’s presidency would amend the Constitution to serve his interests, then President Moi went further than this.
He would directly and openly use the courts and judges without restraint. First, he made sure that appointments of judges and magistrates were in line with his interests.
You would not be appointed to the position of a judge without political vetting.
The “Deep State” comprising a cabal of semi-illiterate politicians and money-hungry bureaucrats would apply political logic during the vetting of anyone they would want to be appointed to the Judiciary.
By the end of the 1990s, the independence of the Judiciary was in name only. A majority of judges and magistrates were taking bribes and kneeling down to powerful politicians. Powerful and influential law firms were the bridge between politicians and the Judiciary. You would always know which politician is powerful by finding out which law firm acted for which politician.
And following the return of multi-party democracy in 1991, you would tell relations between politics and courts by finding out who defended the petitions against powerful individuals in the ruling party.
The law firms had direct access to judges and would give instructions to judges as if the instructions were from the President’s own mouth.
The rot went far and deep in the Judiciary. Very few judges cared about justice when it came to matters of politics. Everyone wanted to save their own skin.
President Kibaki’s tenure, which started in 2003 after he won the election in December the previous year, was slightly different.
President Kibaki introduced the “radical surgery” of the Judiciary, which resulted in the vetting of judges.
It had mixed results; in some cases, there were significant achievements, but bad outcomes too.
Among others, after the radical surgery, President Kibaki also began appointing judges on the basis of political considerations.
Though not widespread, this became a blot in the space he had established to undertake governance reforms.
It is this lack of independence of the courts and judges that the opposition exploited to decline to present their case to the courts following the disputed 2007 election results.
The violence resulting from this dispute also led to the making of a new Constitution that established a new apex court, the Supreme Court, with jurisdiction over presidential elections.
Politics of the Supreme Court
Faced with a context in which the courts were connected to politics, the new Supreme Court — a creation of the 2010 Constitution — had to cut a niche and break with the past.
The appointment of the judges, as well as the Chief Justice and the president of the court, was done in the open.
It was a televised drama and has remained so. The introduction of the ‘sunshine approach’ to the appointment of judges and the Chief Justice was the first standard that the courts established.
And after the appointment of Dr Willy Mutunga as CJ, a new approach to disconnecting courts from politicians, in practice and symbolically, began.
First, Mutunga was not the type to sing to politicians. He refused political favours and did not like the company of politicians.
This sent a strong message to the political elites that “independence of the courts” was real.
But the political elites also interpreted this as a dangerous trend. How can you have judges and courts that you cannot influence? This is a question that many would ask.
The main divisions that were witnessed in Willy Mutunga’s Supreme Court, therefore, were ideological, not political.
There were conservatives and progressives. The progressives looked at the Constitution and the quest for a new Kenya as a benchmark.
The conservatives looked at the print and not the spirit of the Constitution. To them, it is the letter that mattered, not the spirit, especially if the spirit did not leave bold letters on the page.
These differences thinned a little during the tenure of Chief Justice David Maraga. Some conservatives turned progressives and some progressives turned conservative.
Both found comfort in interpreting the Constitution as it should be.
From then on, the pattern became so mixed that in the current Supreme Court, it is difficult to tell the progressives from the conservatives. The conservatives ask progressive questions even though you would expect them not to.
This is the court we have today.
Prof Karuti Kanyinga is based at the Institute for Development Studies (IDS), University of Nairobi, [email protected], @karutikk