Will the Koome Court ever achieve greatness?

I saw an astonishing series of social media videos yesterday: the Judges of the Supreme Court gravely and seriously declaiming about the jurisprudence of the Court. Then the members of the Court, led by its president and deputy president, presided over a televised spectacle at which Chief Justices emerita and the leading lights of the executive, the President and Deputy President, were in attendance, and the subject du jour was the twelve years of jurisprudence by the Court. The PR game has finally alit at the Supreme Court of Kenya.

The judiciary of Kenya has a long and complex relationship with the peoples of Kenya, the complexity revolving around the way the judiciary was used to dispossess Kenyans of their property, violate their rights and fundamental freedoms, entrench human rights abuses within the fabric of the justice system, and perpetuate and sustain two dictatorships in rapid succession (three, if you count the tyrannical dictatorship of the colonial government).

The promulgation of the new new constitution in 2010 was supposed to be the birth of a new judicial dawn. Just as the defeat of Baba Moi's project was supposed to be in December 2002. Instead, the Kibaki era gave us the Radical Surgery that was neither radical nor surgical. And the Uhuru Kenyatta era gave us Judicial Vetting that did very little actual vetting. The outcome, in both epochs, is the sad realisation that "independence" as understood in Kenya is the independence to spend public money on projects of doubtful value without oversight or control.

From the moment the Ministry of Finance handed over the Income Tax House to the Judiciary, and it was repurposed as the Milimani Law Courts, the Judiciary has been spending our money like drunken sailors on shore leave. Willy Mutunga, CJ emeritus, supercharged the profligate squandering of public funds with his expansive real estate projects in the name of construction of law courts to bring justice closer to the people. For sure, the courts came to the people, but justice remains just as elusive.

David Maraga, CJ emeritus, was more successful in his efforts to bring justice closer to the people. Despite the reckless sabotage by the Law Society of Kenya, he set in motion the rollout of the Small Claims Courts that will have far greater impact on the lives of litigants that the seventy or so new law courts that Dr. Mutunga built.

The incumbent Chief Justice does not have a real estate empire to build or a brand-spanking-new judicial paradigm to shift. The judiciary she heads is a grab bag of judges who have found lawyerly arguments to get around their obligations to make judgments in the best interests of the child (that means you Mr. Chitembwe) or have not had the best luck staying out of political contestations (as ex-DP Riggy G can attest). All that she is left with is a strong desire to be seen to do something, anything, even if it means publicity that is inexplicable and confusing.

Even the most dull-witted and uniformed Kenyan knows the case of Roe v Wade. A few of the more ambitious among us can give a solid explanation of the holding in Giella v Cassman Brown. Heck, I was in Nanyuki in May and one of the nicer servers at the hotel I was staying in had very strong opinions on the Muruatetu Case. Despite Willy Mutunga's real estate shenanigans, his Supreme Court set precedents that we shall cite for decades. The current Supreme Court, alas, will be reduced to PR as it waits for a real case to come before it. And that is its tragedy: it is seeking the chance to be a consequential court and in its desires, it is making mistakes that will cost the Court its legitimacy in the long run.

William Shakespeare remains the source of many, many quotable quotes. This one from Twelfth Night is apposite: Some are born great, some achieve greatness, and others have greatness thrust upon them. The Koome Court was not born great. It can only hope to achieve greatness if it steels itself against the temptation to seek greatness in the political wilderness. But it is mistaken if it thinks that Kenyans, and the politicians Kenyans have elected, will thrust greatness upon it. The PR stunts of the past week are not the way to achieve greatness.

Kenya is not the Occupied Palestinian Territories

When the British arrested the men they accused of being the leadership of Mau Mau in 1952, imposed a state of emergency over Kenya Colony, and waged a brutal campaign against Kenyans, there is no doubt in my mind that what Kenyans did to resist the British crimes was not just justified by also morally right. The Kenyan collaborators who were murdered deserved to be killed; after all, because of their actions, Kenyans had been killed in sometimes very heinous ways. The resistance by the Palestinian people against the crime of the Israeli Occupation Forces, including the targeting and killing of Israeli civilians, is justified and morally right.

Any person who tries to compare the corrupt edifices of the Kenyan state to the British colonial government or the Israeli occupation of the Palestinian Territories is not a serious person. I understand how decades of frustration have led to many Kenyans, in their despair, to seek the short cut of murder, violence, mayhem and chaos. In my opinion, they are wrong.

Kenya has had two false starts in the past twenty five years: in December 2002, when Mwai Kibaki was elected as president, and in August 2010 when Kenya promulgated a new constitution. The Kibaki regime made many positive strides towards rebuilding the institutions of government but just as equally, swiftly reversed those gains and supercharged the corruption of the state to unforeseen levels. It was no longer grand corruption; it had morphed into grand looting.

The date of the promulgation of the Constitution - the 27th August, 2010 - was the last time that the new constitutional order was respected, defended, upheld and protected by anyone of consequence in the government. The past fourteen years have seen dedicated efforts, sometimes at the highest levels, to ensure that the values and principles of the constitution have been undermined, subverted and desecrated. Because of these anti-constitutional efforts, fewer and fewer Kenyans have faith in the institutions of government to deal with the entrenched culture of corruption and impunity, whether it is in Parliament, the Judiciary or the executive at both national and county levels. Today, more and more Kenyans have concluded that only the capital execution of the corrupt is the solution. They are no longer interested in the hard work of building, sustaining and nurturing state institutions.

To justify their position, the kill-the-corrupt forces point to the the knock-on effects of corruption from lack of life-saving medications in hospitals to the poorly-designed public infrastructure that lead to the deaths of Kenyans. Some have even go so far as to suggest that the regular Chinese government's habit of executing hordes of corrupt public officials after short show trials may just be the way for Kenya to go. What these people ignore is that so long as they keep the structures of the government unchanged, killing civil servants and politicians will not stop, or slow down, corruption in the government.

Kenyans' suffering because of the corruption of Kenya's public officials is not remotely the same as the destruction of the Palestinian people at the hands of the Israeli Occupation Forces. One is the natural outcome of a disaffected population that is disinterested in national building. The other is the natural outcome of colonialism and racial apartheid. The solution to the former is the reintegration of the people in national building. The solution to the latter is armed resistance. It would pay if Kenyans understood the difference.

Constitutional shibboleths and social media animus

It is a fraught exercise to bring strong opinions on Twitter. Those with whom you may have interacted with previously, and who have become reliable responders to your 280 character musings, will not find it unusual that you may sometimes state things in a certain way. The vast majority though, might react in less-generous ways. Particularly when you find it very difficult to go along with their very wrong takes on the Constitution. Or the Standing Orders of each House of Parliament. Or the role of the Attorney-General when it comes to the legislation-making powers of the Government.

For example, some might not respond favourably when you point out the obvious: Articles 255, 256 and 257 collectively deal with the amendment of the Constitution. Article 256 deals with amendment by parliamentary initiative. Article 257 deals with amendment by popular initiative (of which much was heard during the halcyon days of the BBI fiasco). Article 255 decrees which constitutional amendments must be subjected to a referendum.

The Senator leading the Nandi County delegation in the Senate proposed several amendments to the Constitution. Four of them are particularly important. The proposed amendments to Articles 101, 136, 177 and 180, would have the effect of extending the term of Members of Parliament, the President and deputy President, members of county assemblies, and Governors and Deputy Governors from five years to seven years. Crucially, he does not propose any amendments to Article 142(2) or 187(7), to limit the term of the President and Deputy President, and Governor and Deputy Governor to one term only.

Someone on Twitter said that the introduction of the Constitution of Kenya (Amendment) (No. 2) Bill, 2024, in the Senate was an attempt to escape the requirement for a referendum on the amendments relating to the term of these elected State officers. I pointed out that this was incorrect; that regardless of whether the proposed amendments were through parliamentary initiative or popular initiative, they would still require to be ratified at a referendum. They (and some of their acolytes) were not amused.

It is a consistent occurrence that when people speak on the Constitution, many forget to read the provision they are speaking on with other related provisions. In this case, the fact that the senator had said nothing about a referendum was taken to be his intention to evade the referendum, forgetting that the referendum would be done, regardless of whether the senator said anything about it or not. If the four amendments were not subjected to a referendum, they would not become the law of the land. It really is that simple.

Then came the inexplicable allegation that the Attorney-General, in addition to being unqualified to hold the office of Attorney-General (which she definitely is), had refused or failed to advise on the propriety of the Bill. This flies in the face of Parliament's powers under Article 94(5). Only Parliament can make law in Kenya. The mandate of the Attorney-General under Article 156(4)(a) as the principal legal advisor to the Government does not mean that if the Senate does not seek the Attorney-General's legal advice before proposing amendments to the Constitution, the Attorney-General cannot render such legal advice after the Bill has been published on the propriety of proceeding with the Bill. The advisory power of the Attorney-General can be exercised at any time.

In any case, in my opinion, the proposed amendments are not "unconstitutional"; if the two Houses of Parliament pass the amendments with the necessary thresholds at each stage, and the amendments are affirmed at a referendum, then there is little that the nay-sayers can do about it other than challenge the process in the Constitutional Court. After all, the constitution, including constitutional amendments affirmed at a referendum, are the ultimate expression of popular will, no matter who proposed the amendments or why the amendments were proposed.

I don't believe the four amendments are going to pass in either House or, if they do, that they will find support among the people at a referendum. No one wants elected state officers to pitch camp for seven years without seeking a fresh mandate from the people. But the debate that the amendments have elicited, particularly the ones dealing with the presidential term, have successfully obscured consideration of the implications of the other amendments, like the one to Article 96(3) on the Senate's oversight over national revenue allocated to county governments. The proposed amendment would render the role of county assemblies moot, undermining devolution in the most destructive way possible.

I am not claiming that my views on the Bill, or the role of the Attorney-General in its consideration, is infallible or unassailable. They definitely are. But what challenge you mount against them can't be, "Please just stop", only because I have not adopted a shibboleth that you intend to defend beyond all reason on account of an ill-explained animus against a State officer.

Conservative? What a joke.

I can't remember when he said it, but Kenya's first Leader of the Majority Party, in one of those strange political rallies he was fond of attending so that he could pledge fealty to his Dear Leader, once declared The National Alliance (or was it the Jubilee abomination it eventually morphed into?) to be Kenya's Conservative Party, with the same ideological leanings of the US's Grand Old Party and the UK's Tory party. He didn't say that he was a conservative; only that he was a member of a Conservative Party.

In this week's Sunday nation, the Governor of Murang'a declared that he is a conservative, leading into the same "small government" predilections of Ronald Reagan and Margaret Thatcher. Kenyan politicians are an astonishing group of people.

It is now safe to say that Kenya's politics is no longer moored to any kind of ideological framework. It is concerned, mostly, with taking money from the masses and wasting it on white elephants and thereafter, distracting the hungry, jobless masses that the reason their lives are so difficult has something to do with "corruption" and "tribalism". The declaration, "I am a conservative" or "My party is a Conservative Party" is the political system dipping its toe in the pond to see whether or not the people will fall for that shit because if the people do, indeed, fall for it, then they can watch as ever greater trillions of shillings are poured down the drain of "development" even as their lives continue to suffer degradations of unimaginable scale.

One of the most injurious things that Kenyans have done to themselves in the name of the Second Liberation is to separate the masses from national political institutions, particularly political organisation and political parties. Political decisions, particularly the choice of legislature candidates and allocation of scarce tax shillings, are now made by a tiny cabal that is not motivated with the greater common good. The most effective way to separate the people from their government has been to separate people from the toys they need for their political education, including music, theatre, sculpture and fine arts.

When Kenya's winning long distance runners returned from the Paris Summer Olympics in triumphal form, they were confronted with one of the most hideous sculptures ever foisted on an unsuspecting public. It was a statue of woman marathoner, put together in the most slapdash way imaginable, and placed installed in the dead of night, to be sprung upon a people who could neither process the insult nor work out how to punish the offender.

What I found interesting is that the discourse around the crass demonstration of the indifference that the state and its agent's treats the people was how the one of the reasons the statue was removed from public view without an explanation was that foreign capitals, particularly in the United States, have celebrated Kenyan athletes in deeply meaningful ways. The sculpture was removed because it made Kenya look bad in the eyes of the world; not because the asshole that had ordered its installation was even remotely remorseful for his crime.

So while Kenyans' minds are slowly poisoned against any kind of learning and political education, and the wool is pulled over their eyes with rambunctious "debates" about the "impeachment" of un-useful state officers, the more cleverer of that perverse class introduces ideas about political ideology that they neither understand nor know how to explain to the people they purport to lead. Kenyan political parties lack any form of political ideology so how could the politicians who sit atop of that pile of empty briefcases claim to possess political ideologies of any kind? These men have failed to empower the people they govern to participate fully in political decision making and in order to hide their inadequacy, they try and paint themselves as Margaret Thatcher or Ronald Reagan when in actual fact they are the caricatures portrayed by Mr. Bean and Benny Hill.

The powerful keep making terrible mistakes

No one seriously thinks that the law is deployed for the benefit of the people anymore. It is almost exclusively used as a cudgel to beat submission into the thickest of skulls, particularly the thickest skulls of the young people challenging systems of power and oppression. What little lawful behaviour that occurs in day-to-day life is only by chance. The legal systems and frameworks we have to day only exist to ensure that the State, and those who benefit from the use and abuse of State power, continue to be preserved, even if it means it is at the expense of the weak and vulnerable.

What w have come to describe as the international humanitarian law lays bare the abuses of the powerful and the desperate attempts at survival of the weak and vulnerable. In Palestine, the Palestinian peoples have endured near-starvation at the hands of the Israeli Occupation Forces for the last twenty-five years. The international community has stood by and watched as international humanitarian law has been debased by the Israeli Occupation Forces. And when the international community as intervened, it has been to provide more and more destructive bombs to the Israeli Occupation Forces with which to conduct a systematic destruction of the Palestinian people.

This kind of violence is witnessed at national level too. In India, Hindutva, the supremacist ideology adopted by the ruling coalition in the central government, has been used to target Muslims and Dalits with increasing violence. Constitutional changes have been rammed through the Indian Lok Sabha to deny the Muslims of Kashmir any semblance of self-determination. In dozens of cities, towns and villages, Dalits have been assaulted and murdered on false accusations of cow slaughtering. In both instances, the law has been useless in preventing the atrocities being visited on minorities in India.

In Kenya, marginalised communities have been on the receiving end of environmentalists and environmental law. They have been violently pushed out of their lands in the name of environmental conservation. It is irrelevant that their traditional land use systems have preserved and conserved the environment better than than the modern fortress-like systems being deployed against them today. Because they do not have the population and money needed to push back against their oppressors, they have been reduced to subsistence levels so desperate that they have little or no energy to fight against their plight.

It used to be that there was a. pretence at enforcing the law equally and equitably. That pretence no longer obtains. The exploited can no longer rely on the law to offer them protection or restitution. And when they take their case to the streets, the law is used as a weapon to kill and maim with impunity. If the powerful have their way, even the idea of protest will be illegal. However, the powerful have made a terrible mistake.

The UK had the Gundpower Treason and Plot. The French had the Revolution against their oppressive nobility and beheaded the lot of them. The North American colonists, after their genocide of the First Nation, rebelled against their oppressive king. The United States, against all odds, faced the Black Power movement of the 1960s and backed down. More recently, Bangladesh has exiled its oppressive Prime Minister and Sri Lanka toppled its oppressive president. Sooner or later, the weak and vulnerable will have their backs against the wall and the only choice before them will be death or rebellion. No one willingly chooses death. Sooner or later, systems of oppression are rend asunder. It is never non-violent.

Listen to what Gen Z is saying. Hear them.

Kenyan Gen Z seized the moment that was made for them and threw down the gauntlet at the feet of the Kenyan State. With the memory of the bitter betrayal by Parliament in 2023, Kenya's youngest adults were not going to let the Finance Bill mortgage their futures to an economic promise they had every reason to believe would not be kept. The signs that they were onto something were everywhere, least not being the details of the Finance Bill itself that proposed to tax the ever living snot out Gen Z even before they had a chance to earn a proper living.

Gen Z members of Parliament were offered the opportunity to keep faith with their brethren outside Government, and some of them didn't have the backbone and moral clarity to take a stand. One of the most disappointing parliamentarians is Linet "Toto" Chepkorir. When called upon, she had little of use to say about the Finance Bill and voted for it at the Second Reading. She had shown so much promise when she campaigned for the Woman Representative seat of Bomet at the last general election but since taking office, she has behaved in the same exact way as the venal and avaricious old-timers she found in the Augean Stables that are the chambers of the National Assembly. Should the opportunity present itself, the good and sensible peoples of Bomet County should recall her from office and elect someone else with a better moral fibre.

However, regardless of the way parliamentarians continue to betray the youth of Kenya, Gen Zs appear to be taking their first definitive steps in shaping their now destiny, and the protest they have mounted against the Finance Bill appears to have their full-throated support, even if it might end in tragedy, as the police killing of Rex Kanyike Masai shows. They do not appear to be in a mood to back down and the arguments they have marshalled against the Bill continue to discombobulate senior officers of the Government.

The President appears to find himself in the same uncertain place his predecessor did in the end-stages of their first term. He has articulated his economic recovery plans for the nation on many occasions in many forums, but few people seem to believe him when he says he has the people's interests at heart. Certainly, going by the rageful language deployed by some of the anti-Finance-Bill protesters, Gen Z does not take the President at his word and would rather the Finance Bill in its current form be binned and everyone starts the budget process from scratch. They are not necessarily wrong.

Well-meaning "adults" with very good English have been deployed across many media platforms to explain why Gen Z is wrong about the Bill, about the economy, about the President and about the Government's economic plans for them. We have been reminded about the "deadline for passing the budget" and terrorised with threats of dire consequences if the "budget is not passed on time". This kind of scaremongering is quite tedious, to be honest.

If we fail to pass the budget by the 30th of June, I promise you, the world will not end and Kenya will not die. The Government will face serious difficulties in its spending plans, but I promise you, really, the Government will not fall, the sky will still be up there, and the men and women wringing their hands in fear will adjust. Search through the text of the Constitution and I promise you, there is no mention of a June 30th deadline or a mandatory requirement to enact an annual Finance Bill. The only constitutional requirement regarding the Government's spending plans is that they must be approved by the National Assembly. The only Money Bill that MUST be approved by Parliament in order for the Government to spend taxpayers' money is the Appropriation Bill.

Do not miss the forest for the trees. The Finance Bill is not THE tax law. The tax laws are the Value Added Tax Act, Income Tax Act, Excise Duty Act, Miscellaneous Fees and Levies Act, East African Community Customs Management Act and the Stamp Duty Act. They are the laws that impose taxes on income, business activities and commodities and services bought, sold, imported into and exported out of Kenya. The Finance Act is merely a tool for varying and changing the rates of tax. That's it. 

If the tax rates remain unchanged year on year, the Government will not fall. It's will still continue to collect tax. The only thing it will need to spend those taxes is the approval of the National Assembly - given through the Appropriation Bill. So, perhaps, we should listen to Gen Z. They may have none of the sophisticated English being deployed against them, but they are saying something worth listening to.

The law will kill public participation

The Constitution imposes an obligation on the State to facilitate the participation of the people in governance, law-making and policy-making. This obligation is articulated in Article 10, Article 118 and Article 232. The Constitution does not mandate that a law be enacted to provide for the manner in which the participation of the people shall be facilitated. In my opinion, it does not require a law for the people to participate in governance, law-making or policy-making.

It is not always good idea to legislate the implementation of the obligations of the State. Laws are terrible tools; they limit you to what is enacted, and they can, quite often, prove very inflexible when they are being interpreted, applied, administered or enforced. Despite the lack of a written public participation law, Kenyans have forcefully inserted themselves in the affairs of the Government. The most obvious way that they have done so is through public interest litigation. But maandamano, with the police beatings, shootings, and malicious prosecutions that ensue, have proven a much more effective form of participation of the people, one that has compelled the Government to concentrate its mind in ways that have been very disconcerting and uncomfortable.

I am not opposed to legislation; but seeing the way legislation has been watered down, ill-drafted, mutilated by amendments, undermined by official disinterest and damaged by constitutional petitions, legislation almost always has unintended effects that negatively impact the stated object of the legislation. If Kenya enacted a written law on participation of the people, it is almost certain that the law will be hijacked by the Government and the overall object of fostering transparency and accountability in governance, law-making and policy-making will be severely watered down. Just look at how difficult it is to recall an elected parliamentarian despite the fact that there is a whole written law for that purpose (Part IV of the Elections Act, Cap. 7).

It is not the law that confers on us a right to participate in the affairs of our government; it is our inherent citizenship which the State can neither deny nor revoke that confers on us that power. We are sovereign, regardless of what the legislation enacted state, and our sovereignty grants us the right to weigh in on any matter of national importance without mediation by an Act of Parliament. Attempts to legislative the form of the participation of the people (or the consequences of that participation) will lead to one inevitable outcome: the criminalisation of specific acts of participation that the State has attempted, in various forms, to abrogate and suppress. Worse, where the outcome of the participation of the people is programmed into the legislation, we will spend so much time on the technicalities and administrative nature of that participation that we won't notice that we have lost sight of the forest for the trees.

In Kenya, the way in which laws are designed is intended to undermine fundamental freedoms and rights of the individual, especially when it comes to any attempt to hold State officials to account for their acts of commission and omission. What many citizens believe will be a boon to public participation will come to haunt them if it is enacted. Instead, I would advice that the process of engaging with the State, its officials and its institutions should proceed without any of the shackles of an Act of Parliament but instead through the development of a civic culture (and a robust public interest litigation tradition).