Has Raila been caught between a rock and a Handshake?

President Uhuru Kenyatta (C) flanked by Former Prime minister Raila Odinga (R) and Deputy William Ruto at the Bomas of Kenya in Nairobi during the official launch of the Building Bridges to a United Kenya Taskforce Report on October 26, 2020. [Stafford Ondego, Standard]

ODM leader Raila Odinga is increasingly finding himself in an unfamiliar silent space, even as the Opposition suffers a loud lack of a formidable political figure.

The March 9, 2018 Handshake between President Uhuru Kenyatta and the ODM leader may have stopped heightened hostility that followed the State House contest, but put the last nail in the Opposition’s political coffin.

On his part, the pact has given Uhuru free reign that has tended to fly against the established legal order and constitutionalism.

Friday’s swearing-in of 34 judges of the High Court and the Court of Appeal against two active court orders is the latest in a series of breaches of the constitutional order by President Kenyatta, without a word from the mainstream Opposition. 

The president has been wrong-footed in the courts over the creation and mandate given to Nairobi Metropolitan Services (NMS), transfer of the Kenya Meat Commission to the military and creation of the position of Cabinet Administrative Secretaries.

Other extra-legal acts include taking no notice of the advisory by the Chief Justice to dissolve Parliament over the two-thirds gender law and lately, the finding by a five-judge Bench of breaches of the Constitution with regard to the Building Bridges Initiative (BBI). 

Maina Kiai case

Other optics of Uhuru’s free reign include whipping of Parliament at State House and what now looks like eventual taking hostage of the Legislature.

There would also appear to be spirited efforts to capture the Judiciary, with judges who seem independent-minded, being targeted for attrition.

The four judges whom the president has rejected have previously been seen to make the State anxious in carrying out their duties.

Justices George Odunga and Joel Ngugi were part of the Bench that threw the BBI Bill in the doldrums.

Justices Aggrey Muchelule and Weldon Korir were part of a Bench in the now famous Maina Kiai case that ruled that presidential election results as announced at the constituency would be final and could only be challenged in court. 

Separately, Justice Muchelule served in the JSC that appointed Chief Justice David Maraga. The same JSC appointed Deputy CJ Philomena Mwilu and Justice Isaac Lenaola to the Supreme Court.

The three judges were key in the annulment of President Kenyatta’s re-election in August 2017.

Today, Raila finds himself in a difficult place when the president lambasts the Judiciary for annulling his election, after ODM filed a petition against the election.

He is equally out of his depth when the president ‘revisits’ judicial officers seen as responsible for appointing a Supreme Court that is seemingly engaged in activism.

ODM leader Raila Odinga makes his speech during the launch of Building Bridges Initiative report at Bomas of Kenya in Nairobi on November 27, 2019. [Stafford Ondego, Standard]

Emboldened Executive

Traditionally, these are the kinds of developments that Raila would never allow to pass unattended.

While the political Opposition exists mainly to tame Executive excesses, President Kenyatta has enjoyed an unchecked three-year roller-coaster from March, 2018.

Then, the president and the ODM leader told Kenyans that toxic politics was tearing apart the fabric of the country. They undertook to henceforth work together on a nine-point agenda expected to give the country positive national ethos.

In an environment where the alternative voice in the Jubilee era boiled down to one man – Raila – the country has lost the Opposition as the conscience of the nation. The spinoff has been an exceptionally emboldened Executive. 

The swearing in of 34 judges against two court orders that required the president to admit all the 40 judges is the latest move by an unrestrained Executive.

The JSC passed 41 names to the President in March 2019, in line with Article 166 (1) b that says that away from the Supreme Court, the president shall appoint “all other judges, in accordance with the recommendation of the Judicial Service Commission.”

One nominee passed on before joining the bench.

In January 2013, then President Mwai Kibaki received a schedule of 25 judges from the JSC. He retired in April without swearing them in. Following unremitting pressure from the Raila-led Opposition, the Law Society of Kenya and civil society, President Kenyatta presided over the swearing in of 11 of the judges in June, 2014.

It took more pressure for him to admit the remaining 14.

The country is witnessing a replay of that script in a scenario that tests personal rule against constitutional rule. Today, the role of the Opposition as a political party function is all but dead. ANC leader Musalia Mudavadi and Wiper leader Kalonzo Musyoka, rank next to Raila in the pecking order of alternative voices.

They have, however, distinguished themselves for tiptoeing around national issues, for what would seem to be fear of stepping on the president’s sensitive political toes, a move that could cost them dearly. 

The country has been left in an awkward place, where personal presidential ambition by Opposition chiefs overrides the need to speak out for the nation and the rule of law.

For a while, in the period between March 2018 to about May 2020, the ANC leader attempted to fill in the void left by Raila.

Mudavadi characterised himself as the last man standing in the Opposition corner and would issue profound statements on the economy and plunder of public resources.

He interrogated the irregular path that the BBI constitutional referendum effort was taking, and the then emerging power grab.

Preferred successor

It is the irony of hindsight that the five-judge Bench agreed with the questions that the ANC leader had previously raised before embracing the BBI.

Today, Mudavadi has mellowed and warmed up to the thought that Uhuru could name him as his preferred successor.

There is hope that Uhuru could rally the populous Mount Kenya vote around him. Like Raila, therefore, the ANC leader sees no evil, hears no evil and says nothing evil against a new order that ignores the law. 

For his part, Wiper leader, Kalonzo Musyoka, made a public appeal to the president, in 2019, to make him one of his political ambassadors. He was soon rewarded with an appointment as Kenya’s Special Envoy to monitor the peace process in South Sudan. It is not clear where the appointment rests today. 

In a strange twist of history, it has been left to Deputy President William Ruto to say some of the things that the Opposition leaders should be saying. Even then, it is not difficult to see that Ruto says such things with extreme restraint.

On Friday, US-based law professor Makau Mutua tweeted: “ODM’s Raila Odinga must exit the Handshake with Mr Kenyatta. He cannot continue to abide by Mr Kenyatta’s illegal and unconstitutional conduct. Enough is enough!”

But can he?