Thursday, September 14, 2017

Look beyond the petition

If it is true that the member for Nyeri Town intends to petition the Judicial Service Commission to remove the Chief Justice and President of the Supreme Court from office, this will be the culmination of a campaign against the Chief Justice and the Supreme Court since it nullified the results of the presidential election on the 1st September. It is also a reminder that in Kenya retrogressive forces have always relied on institutions of Government, including laws made by Parliament, to achieve malign ends.

The Committee of Experts and before it, the Ghai Commission, reviewed the constitutional amendments that led to the establishment of an "imperial presidency" and wrote elaborate provisions to corral and control the presidency. "Independent" institutions established under the Constitution such as the Judiciary and the Judicial Service Commission were designed by constitutional provisions to be independent from the national Executive, especially the president. Kenya's constitutional reformers missed a glaring point: institutional independence was never Kenya's greatest weakness but the law-making powers of Government. The manner in which the presidency had become imperial -- from the constitutional amendment that allowed the president to pardon election offenders to the one that stripped the Attorney-General of security of tenure -- were laws passed by parliaments that the president controlled, either as the leader of the largest number of MPs or as the benefactor of many MPs in parliament.

In the aftermath of the 2017 general election, the president's party enjoys a considerable majority in both chambers as well as control of most county governments. This majority is useful when it comes to law-making, including constitutional amendments even to the Bill of Rights, provisions on commissions and independent offices and the powers of constitutional institutions such as the judiciary or the office of the Chief Justice.

It is the exercise of this power by a parliamentary majority that should worry us all. Harry Houdini was famous for getting out of straitjackets and other forms of confinement. He was also famous for elaborate illusions. While the audience was mesmerised with events taking place in one part of the arena, he was engaging in acts that allowed him to, for example, disappear an elephant in a room full of people. The petition that has been filed with the Judicial Service Commission may or may not amount to much; if the press conference given by the petitioner after his filing was done is anything to go by, it is founded on the semi-coherent ramblings of a novice law student relying on hearsay, innuendo and a shocking misinterpretation of the phrase "rule of law".

It is an illusion that is meant to distract us from parliamentary business which commenced immediately after the president's address on the opening of this parliamentary session. In the debate that followed -- a debate that was supposed to be on the president's address -- the majority party focussed their parliamentary wrath on the Chief Justice and the Supreme Court decision to nullify the results of the presidential election. The majority leader in the Senate is absolutely sure that parliament will be amending laws to protect the "will of the people" in presidential elections. This will be in keeping with the president's promise to "fix" the Judiciary after the fresh election ordered by the Supreme Court has been held.

On any question relating to the interpretation and application of the Constitution, the loudest and most gung-ho politician is almost always a distraction. The petitioner against the Chief Justice is now the loudest and most gung-ho voice in the anti-Chief-Justice campaign by the majority party. You must ask yourself, "From what is he distracting us?"

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