Recent happenings in Kenya regarding constitutionalism sound alarm bells that the country may have taken a dangerous path.
This trend needs to be urgently addressed by those who cherish democracy and the rule of law. Tony Blair once opined that anywhere, anytime, ordinary people are given the chance to choose, the choice is the same: freedom, not tyranny; democracy, not dictatorship; the rule of law, not the rule of the secret police. These past few weeks, Kenya seems to have chosen the road many would not opt for.
The 2007 post-election violence was a watershed moment for judicial reforms. Informed by the fact that the crisis was attributed, in part, to lack of faith and trust in a Judiciary that was perceived to be under the control of the Executive, it was clear that radical reforms were required in the courts to ensure their independence and in so doing, gain public confidence. From this experience, it was necessary to begin a process that would restore our judicial system.
The National and Reconciliation Agreement signed on February 1, 2008, among others outlined Agenda No 4, which sought to offer long-term solutions to the political standoff then.
The National Accord and Reconciliation Act, 2008 brought forth the Committee of Experts that eventually spearheaded efforts that heralded the Constitution of Kenya 2010. This significantly changed the structure of the State in many ways to cure electoral injustices and offered voters a choice of wide representation.
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REVAMPED JUDICIARY
Following these developments, the Judiciary slowly began to regain its lost independence, confidence, and trust. By 2013, there was growing confidence in the Kenyan judicial system and optimism with its head, Justice Willy Mutunga, who was widely considered a reformist.
After the 2013 elections, the Opposition disputed the results and challenged them in the Supreme Court without success. This was an indication of trust in our judicial system and a major milestone towards building trust in the institution and the rule of law.
As is widely acknowledged, the independence of the Judiciary from the influence of the other arms of government is essential to the achievement and proper functioning of a free, just, and democratic society. However, in the period before and after the General Election held on August 8, 2017, we have witnessed actions that are an affront to the progress made in establishing constitutionalism in Kenya. Four TV stations - KTN, NTV, Citizen TV, and INOORO TV - were shut for defying an order not to cover the proceedings of the 'swearing-in' of the NASA leader as the 'people's president'. The order violated the right to access to information, freedom of expression, and freedom of the media.
Article 34 guarantees freedom and independence of media while Article 35 guarantees citizens the right of access to information. These are rights and freedoms that we have fought for before and after independence and should, therefore, be guarded jealously.
The Government further defied a court order to reinstate the broadcast signals of the affected stations. While the stations are now back on air, it took an inexplicably long time to comply with the various court orders.
DANGEROUS PRECEDENT
The Government is setting a trend where court orders are disregarded by State officers who took an oath of office to protect and uphold the Constitution. The Miguna Miguna debacle and its handling by the State raises significant concerns that if not stopped, citizens’ rights could be violated in a manner akin to the political persecutions of the single-party era.
The court made five orders that were abrogated by the Ministry of Interior and National Coordination, which issued counter-orders that purported to override court orders.
The rule of law should be a guiding principle for all citizens of the land and is the cord that holds the State and its ecosystem together. It is high time public officers abided by the Bill of Rights, the rule of law, and national values and principles of governance, as enshrined under Article 10 of the Constitution.
Anything contrary to this should be dealt with firmly so that we quickly arrest the trend where State officers are unaccountable for their actions.
As the Chief Justice noted in his statement on February 7, 2018, “Compliance with court orders is not an option for any individual or institution …. It is a crucial matter of constitutional and civic obligation.” It further notes that courts should be spaces where citizens’ rights are protected, not abused.
It is important that we guard the constitutional strides we have made as a country since independence and to continue building on that foundation for greater prosperity.
Anything to the contrary could take us back in every aspect of our national development. The three arms of government should operate within their realms, respecting one another, as the Constitution of Kenya demands.
