These are not serious people

The Orange Democratic Movement Party of Kenya (ODM) is a pale shadow of the political movement that defeated the Banana side during the 2005 constitutional referendum. It has been in steady decline from the date it buried the hatchet with Mwai Kibaki's Party of National Unity and joined a Grand Coalition Government. It started kicking its last kicks of relevance when it led the Coalition for Reforms and Democracy into a defeat, and cemented its place as an also-ran political party when the Azimio One Kenya fell to the Kenya Kwanza onslaught. On the 11th February, of 2026, it affirmed to itself that it is no longer a serious political party and should be treated with the same pity one treats the slow learners in school.

The decision by the party's high command to turn a stop-gap arrangement in which the geriatric Oburu Odinga was a placeholder for a young a dynamic leader into a permanent sinecure was to be expected. The late Raila Odinga had tried to build a cadre of young politicians who could challenge for senior leadership in the political party and failed. So, in the absence of credible young guns to take Raila's place, Oburu was the most logical, if stupidest, choice. It wouldn't be so bad if he had any sort of dynamism about him. He doesn't and it is quite terrible to see.

What is worse is the foolishness of the political party to thin its leadership ranks simply because it does not know how to manage ambitious politicians. The decision to sack Edwin Sifuna as its secretary-general is asinine; his replacement by an unknown councillor is imbecilic. Sifuna is a hard-charger. You only need to watch videos of him savaging Kenya Kwanza infants on TV for you to appreciate what he could have brought to the political party. He has charisma by the bucket and for all his manoeuvring and conspiring, he appeared committed to the political party that had given him a national profile.

The shortsighted men and women in charge of party strategy - Junet, Wanga, Nassir, Winnie and Oburu - are so focussed in keeping their noses in the Kenya Kwanza trough, they no longer seem to care that Kenya Kwanza is hell-bent on turning itself into the new KANU with the intention of ruling Kenya for the next twenty-four years. If that happens, not only will the ODM-ites lose their privileged access to the trough, they will lose everything they have amassed over the past fifteen years and they will be lucky if their leading lights don't spend the entirety of the Kenya Kwanza reign fighting all sorts of criminal charges in the law courts.

The red herring that ODM is chasing after - Uhuru Kenyatta's meddling in the Azimio leadership and whatnot - reveals the dearth of strategic thinking at the highest levels of the political party leadership. Uhuru is not the equivalent of Cardinal Richelieu, pulling strings behind the scenes to achieve some grand political agenda; he is a very young ex-president with too much money and time on his hands and a massive chip on his shoulder about the man who bested his pet project at the hustings in 2022. Uhuru's games with Azimio will not bear any sort of fruit beyond stymying District Focus Gachagua's stillborn ambitions and giving Uhuru something to do so that he doesn't lose any more of his good humour in his post-presidency.

ODM is paying attention to the wrong things instead of building a political machinery to replace the oversized influence of the late Raila Odinga. It is not recruiting new members. It doesn't appear to be raising a campaign war chest to defend the seats it holds, to take back the seats it lost in 2022 and 2017, or to poach the unsafe seats held by Azimio and Kenya Kwanza. It is sacking young men who had the measure of the party, who kept many of its secrets, and who executed many of its plans - and all because the party's ancien régime has its back up because Sifuna will not swear fealty to a decrepit political party infrastructure marching in the wrong direction. These are not serious people. They deserve to lose everything they hold dear.

Missing the mission for the wrong customs

Were the poor members of the Judicial Service Commission - and their long-suffering staff - ever to encounter my curriculum vitae, they will swiftly arrive at a terrible conclusion: while my confidence as a legal practitioner (though not a litigator of any kind of note) is unparalleled, my determination to eschew and elide many of their foibles and customs will horrify them to their very core. It is only this past week that I have had a chance to reacquaint myself with the expression "judgment per incuriam" and only because I was curious to confirm whether memories from twenty-one years ago were sharp as a tack or blunt as butterknife. I'll spare you the mystery: the memories are as blunt as a butterknife.

There was a recognition of the place of Gen Z in the judiciary. One of the members of the interview panel; declared that they form the majority of the workforce. The interviewers were obsessed with the question of how interviewees would manage this cohort of workers and it brought to my mind a sense of dread. No matter how had it has tried to demystify itself in the eyes of the public, the judiciary is stultifyingly bureaucratic, pigeonholing different cadres in neat boxes and bestowing on them qualities that satisfy the decision to pigeonhole them in the first place. I am, as my elected representatives tend to put it, of a contrary opinion.

All organisations have distinct cadres, with unique attributes and needs, and whose recruitments was undertaken to meet distant institutional needs. The aim of the institutional human capital development system is to forge them into a team and point them in the same direction. Institutional needs supersede demographic identities. Since the fateful anti-Finance-Bill-2024 "Gen Z protests", this demographic has been imbued with mysterious powers and bestowed with inexplicable needs, instead of seeing them as part of the continuum of public officers, an unbroken thread of recruits going back tot he founding of the Kenyan civil service. If change is to visit the judiciary, the change is to visit all cadres and hierarchies of the judiciary, to bring old doggies up-to-date with the artificial intelligence and ChatGPT world, and acculturate the Gen Z whippersnappers into the mysteries of the civil service. The aim, as always, is to forge a united workforce that is dedicated to achieving the institutional mission.

But in a Government festooned with buzzwords and "it" catchphrases, certain traditions are no longer followed, and the consequences are there to see: unhappy cadres at all levels of the civil services, dissatisfied at work, yet unable to depart for greener pastures because the world out there is wildly competitively cutthroat and only the most ruthless survive. Career in the "private sector" are quite often short-lived; the days of working for a single employer all through ones career are over. Indeed, more young people work more side hustles in a year than certain kinds of civil servants have done for thirty-five years.

And so in order to try and recreate customs long dead, there is a terrifyingly stuck-in-place generation of jurists who still cling onto a world where lawyer, and the advocates they became, memorised Latin phrases even if they no longer held onto the meaning behind the phrases. I could give you a reasoned explanation of why a court decision is considered invalid or not binding because it was made in ignorance or forgetfulness of a relevant statute or a binding precedent, leading to a demonstrably wrong conclusion, and why such a wrong decision would not be considered as precedent-setting. But I would not think it necessary, unless someone was truly determined to resurrect Cicero, to fall back on per incuriam to make my case.

Customs, particularly the customs of professions, must evolve. It is the only way that practitioners can keep up with a changing world. Principles, on the other hand - truth, justice, integrity, professionalism, hard work, dedication, honour - all those must hold strong. But, like the wigs and robes of yore, if you cling onto the wrong customs, you will draw the wrong lessons about the different cadres in your institution, and fall under the spell of catering to the needs of small, ill-defined fiefdoms - instead of building an effective institution to achieve a singular mission.

Lord Acton was right

Prof. Makau Mutua and Dr. David Ndii have one massive thing in common: their understanding of a "presidential system of government" is that under the current Constitution of Kenya, the president's mandate under Article 132 is expansive, and should not be fettered by constitutional and statutory interpretations regarding transparency or fiscal prudence. Obviously, the Katiba Institute is of a contrary opinion.

The constitutional and statutory limits of the the president's mandate under Article 132 will be canvassed by legal teams all the way to the Supreme Court and the decision by the High Court to annul the appointment of twenty-one advisors will not be the subject of this screed. Instead, we can attempt to examine why Prof. Mutua and Dr. Ndii are expending so much energy to re-establish the imperial presidency Kenyans buried on the 27th August, 2010.

Prof. Mutua's volte-face is particularly surprising; Dr. Ndii's not so much. The latter has been pretty open about his motives and motivations, and by and large, he has achieved his objectives. Prof. Mutua spent a considerable amount of his professional live as a lawyer, constitutional expert, political commentator and sounding board to the political opposition in staunch opposition to the establishment, perpetuation and expansion of an imperial presidency. He has cavilled against the idea that a president has the freest hand in how he forms his government, whom he appoints, what he pays them, and what the presidency is allowed to do without seeking a popular mandate from the electorate (or the citizenry) to do it.

Prof. Mutua is one of the dozens of constitutional thinkers who shaped the language in Article 10 of the Constitution, particularly the inclusion of the words "sharing and devolution of power, the rule of law, democracy and participation of the people" in paragraph (a) of clause (2) of Article 10. Prof. Mutua's inclusion among the coterie of advisors appointed by the president, to advise him on constitutional affairs, was a surprise, particularly as the president had among his team Mr. Kennedy Ogeto, the former Solicitor-General, to advise him on the same matters and, more importantly, the president has ready access, day and night and on short notice, to the Attorney-General and the entirety of the State Law Office.

It was clear that Prof. Mutua was taken on as part of the president's rapprochement with the late Prime Minister, Raila Odinga, which rapidly took shape after the 2024 anti-Finance-Bill Gen Z protests. Mr. Odinga got the chance to include in the Cabinet and the Executive office of the President his acolytes and confidants, such as Prof. Mutua. Had Prof. Mutua carried on in the same vein he had when he was advising Mr. Odinga on what we needed to do to live up to the highest ideals of the Constitution, we would not be having this conversation. But he seems to have adopted the president's and the president's other advisors' views on the expansive powers conferred by Article 132, and set aside his own long-held views on the need to limit presidential power. The dissonance is blindingly glaring.

Dr. Ndii's position is not untenable. He is a political mercenary. If he ends up being paid a pretty shilling, that is the price we pay for not waging a successful counter-insurgency against his political machinations. I will not begrudge him his victories just as I will not begrudge Katiba Institute its successes in the High Court against Dr. Ndii. But for Prof. Mutua, one must wonder: did he ever believe any of the things he said and wrote in his decades in the constitutional wilderness with the fighters of the Second Liberation and the army of constitutional lawyers who made impassioned submissions on the need to limit the power of the imperial presidency?

It is a truism that once a person is sucked into the very heart of the Government, it is almost inevitable that they will be seduced by the power, pomp and circumstance. Nothing quite prepares you for the way the power is wielded and how it shapes destinies. It is quite devastatingly powerful and few can resist its allure. You snap your fingers, and shit gets done. Doors are flung open for you. Red-carpet treatment is laid out for you. Everyone - and I mean, everyone - answers your phone calls. Promptly. And if you have a keen ear, you will hear them answer your phone calls at attention. It is enough for you to start thinking, "I deserve this. I am meant to be here. This is what I was made to be." Until Katiba Institute blows up your dreams into a million pieces. We should heed the warning by John Emerich Edward Dalberg-Acton, 1st Baron Acton, 13th Marquess of Groppoli.