Judiciary should initiate talks on arbiter role in poll disputes

I addressed the annual colloquium of the Judiciary in Mombasa last week, the second time I have done so. The first time was during the time of Justice Evan Gicheru, in whose time the annual gathering of the Judiciary began. Over the years, this annual assembly has not only developed into the showcase activity for the Judiciary, but now also acts as a key barometer on judicial politics.

As part of this, the convening has provided ways of measuring the ever-fluctuating levels of openness in the Judiciary. When the Judiciary has been in a comfortable place, it has been more open to external engagement. On the other hand, when it has felt less approved of, like in the period between the 2013 and 2017 elections, it has recoiled inwards, blocking out the participation of stakeholders.

Ever since the Supreme Court annulled the results of the presidential election in 2017, the Judiciary has endured unprecedented political backlash as part of which individual judges, including Chief Justice David Maraga, have been targeted for vilification and the Judiciary subjected to a reduction of its institutional budget.

During that time, it recoiled, afraid that any association with external stakeholders would feed accusations that the annulment of the presidential results was the result of a supposed evil ring involving actors external to the Judiciary. The new openness is now the result of three factors. First, a massive transition in the Supreme Court is unfolding with Justice JB Ojwang, recently reprieved from the threat of removal for alleged misconduct, set to retire next year, and Maraga the following year. Deputy Chief Justice Philomena Mwilu, on the receiving end of heavy political artillery, faces an uncertain future in the Judiciary. With a transition in place, there are legacies to think about and succession politics to manage.

The engagement reflects an implicit need on the part of the Judiciary to draw on external resources to address these emerging issues.

Ended in failure

Secondly, because it ended in failure, the attempted removal of Ojwang will not only weaken the complaints mechanism against judges but also increase internal divisions in the Judiciary. With the Supreme Court in such a state of flux, the Judiciary needs external allies.

Thirdly, the fact that the Judiciary is reaching out reflects the growing confidence by Maraga in his leadership role. Unheralded when he took over from the fashionable Willy Mutunga as Chief Justice, the 2017 presidential election petition exposed Maraga’s courage, redefining and catapulting him into the position of one of the great judicial leaders in Kenyan history. Since then, Maraga’s chief concern has been the daily survival for the Judiciary in the face of the hostile political environment that followed the petition. The hostility forced Maraga to carefully consider who the Judiciary was seen to be interacting with, as a way of managing the political backlash. If he moved the Judiciary too much to the left, this only lends credence to accusations that itis working with external forces to undermine the government.

It is in this context that Maraga’s much-criticised presence at a presidential function in Kisii in February must be understood.

If he failed to attend a rally when the President went to his home area, this could be taken as a sign of disrespect and would only worsen the already bad relationships. His attendance of the rally was a continuation of the process of balancing out in response to the continuing backlash against the Judiciary.

Maraga would now feel that, at a personal level, the worst is over. While he is still unwanted, he does not have much time left in office, and those who have been trying to force him out no longer have to try, since he will retire anyway. Maraga would also feel that organising a legacy is now urgent business and that talking to other actors will help with that objective.

My address at the Judiciary colloquium dwelt on the judicialisation of politics. A complex subject, the most significant aspect of judicialised politics in Kenya occurred when the country established a Supreme Court on which it conferred the jurisdiction to decide on mega political controversies including presidential election disputes. This has proved a difficult and thankless role since every time the court has dealt with a presidential electoral dispute, political backlash has followed.

With the next election still a long way away and the position of the Judiciary now weakened by the blowback after the 2017 election, I invited the leadership of the Judiciary to commence conversations with other stakeholders about the future of its role as an arbiter in electoral disputes.

Unless the Judiciary can secure assurances that the political establishment will respect any decision made in good faith after the next elections, it should ask for this jurisdiction to be taken away.

- The writer is the executive director at KHRC. [email protected]