A common discussion among lawyers over the last decade has been about what is referred to as “judicial activism”. The debate revolves around a belief among some judges that they are justified to make decisions without relying on the law if they believe this is necessary to achieve an end they believe in.
The term is, however, just a polite way to describe the situation where judges decide to pursue a political agenda. It happens when the judges usurp the powers of Parliament or the Executive to enforce what they think is best for the country.
I wish to state something here as a published author and established commentator on the Kenyan Judiciary. Judicial activism has taken root in the Kenyan legal system. I say this with the same confidence I had in the year 2001 when I published “The Black Bar: Corruption and political intrigues within the Kenyan legal fraternity” and said that the honest judges in Kenya then could sit comfortably in a saloon car.
After a lot of huffing and puffing, those who criticised my book came later to say that my statement was prophetic. Allow me to tell you the truth about judicial activism in Kenya today.
Judicial activism came in with the tenure of Chief Justice Mutunga. Its adherents had worked together to ensure his ascendancy to the bench, and a lot is said today how they destroyed every competitor to CJ Mutunga during the Judicial Service Commission interviews and secured him as the sole viable person to sit as Kenya’s first Chief Justice under the constitution. But that is the story for another day.
It is believed that Chief Justice Mutunga and a few judges formed a kind of secret society within the Judiciary that was sworn to direct social and political change in Kenya through their decisions. This cabal of judges is also believed to work together with like-minded lawyers in achieving these objectives.
I am convinced beyond any shadow of doubt as a writer and leading commentator on the Kenyan Judiciary, that the BBI case decided this week is one of the cases being used by this cabal in directing political change in this country.
I will lay out how these political objectives were pursued in the BBI case.
The first objective was to establish a jurisprudence that curtailed the power to amend the constitution to a point that judicial approval has to be sought and obtained before any changes are made.
The BBI case did this by ruling that the Kenyan constitution has a basic structure that made some clauses unamendable. But when the court ruled this, it was faced with the question of what this structure was. The judges said it was to be found in the Preamble, the 18 Chapters and the Schedules. In short, the whole constitution.
Then the question was which parts were unamendable. They said only some clauses are but it was not possible to lay them out. In the words of the court: “An exhaustive list of which specific provisions in the constitution are un-amendable or are eternity clauses is inadvisable to make in vacuum.”
Put simply, the court will be waiting for each attempt to amend the constitution to decide whether the amendment should be allowed or not. The court will become the prefect of constitutional change in Kenya.
This of course is a coup against the sovereignty of the people. While the people of Kenya at Bomas had said that judges will not have any power to decide the validity of any clause of the constitution, the judges have now found a way to curtail the sovereign power of the people by giving the court power to decide what enters the constitution. This is politics, not law.
The court then decided to stop BBI. This was done on many fronts but one of them reveals political activism best. The court ruled that President Uhuru Kenyatta was attempting to execute constitutional changes through the Steering Committee for the Implementation of the Building Bridges Initiative Task Force Report.
Evidence placed before the judges showed that the Steering Committee was set up by a Gazette notice on January 10, 2020. It was given a legal mandate until June 30, 2020 and that the mandate was never extended. It means, it ceased to exist from that day.
Evidence also showed that the popular initiative to amend the constitution was started about six months later when Hon Dennis Waweru and Hon Junet Mohamed went to IEBC and delivered some four million plus signatures together with a draft bill. They were operating under an initiative called ‘BBI Initiative’ and a body called the ‘BBI National Secretariat’.
The court ignored Waweru and Junet. It insisted that the steering committee was the one promoting the amendments and even proceeded to issue orders to that effect and declaring null and void the initiative being promoted by the Steering Committee for the Implementation of the Building Bridges Initiative Task Force Report.
How does a non-existent legal entity promote a constitutional amendment initiative? This was a fact that was being created by the judges. All the evidence was telling a different story.
The court then turned its guns on President Kenyatta. I think everyone agreed that the judges could not hide their bile against the President or did not even care to. Using the fictitious fact that he was promoting constitutional change through the non-existent steering committee, they found him guilty of contravening the constitution and convicted him accordingly.
They did not stop there. They stripped him off his constitutional immunity, invited people to sue him personally while still in power and said that the Attorney-General should not defend him. He should engage his own personal lawyers.
Even the petitioners were shocked. No one could tell where all this was coming from. And no one could understand why the judges were being so rude. It is fine not to like the person known as Uhuru Kenyatta but could they not at least recognise that he was the President of the Republic and address him appropriately? Don’t we lawyers address judges as “My Lords” and “My Ladies” even when we have no respect for them?
It was clear at this point that the judges had gone too far. They had executed a second coup, this time against the Executive branch of government. Now everyone would assume the Office of President was at the mercy of judges because without immunity, judges could ruin that person financially.
On a practical level, the judges had also created a situation where no one could ever effectively execute the duties of the presidency. You can imagine how many lawsuits will be naming the President as a defendant in his personal capacity. Then he has to attend to every case, using his own lawyers.
To be president of Kenya, you will need to be either a billionaire times over, or an incorrigibly corrupt person because you will need hundreds of millions of shillings to pay lawyers to defend you in High Courts all over Kenya.
As I said, this was not about law. It was about politics.
The writer was joint secretary to BBI taskforce