How Populist Politicians Are Weakening the Kenyan Judiciary

The Kenyan President and his parliamentary allies are guilty of constitutional vandalism. In what has become an increasingly popular political move, they conveniently blame the judiciary for their unfulfilled promises, making the courts an easy target in a democracy backsliding. Lacking public outreach – judges neither organise rallies nor post on social media –, the judiciary has become a scapegoat to rally political support. While courts aren’t beyond criticism, some attacks are self-serving, often from those with pending or impending court cases. For instance, the deputy president publicly accused a judge of corruption, only to retract his threat to petition the Judicial Service Commission. The judge ruled the deputy president’s wealth partly unaccounted for and criminally obtained. If unchecked, as warned by South Africa’s Deputy Chief Justice, these attacks could render the judiciary’s authority illusory and the constitution a chimera, as they aim to subordinate judges to the executive, compromising Kenyan constitutional rights.

The fallen ‘angel’: President Ruto’s war against the Judiciary

Ruto came to power promising economic and institutional reforms and criticizing his predecessor’s misuse of the justice system. He initially appeared blameless, appointing six judges his predecessor had refused to appoint, working on operationalizing the judiciary fund, and supporting an increased judiciary budget.

However, things changed. Kenyans turned to the judiciary for rights protection in a country where the parliament is merely an executive extension. They adopted ‘lawfare‘, using courts to enforce what were traditionally considered political disputes. This frustrated the President’s development blueprint, with conservatory orders halting most of his flagship projects. For instance, the judiciary has stopped actions such as the swearing-in of Cabinet Assistant Secretaries, privatisation of 11 government parastatals, and the implementation of the finance Act, digital identification cards (Maisha mamba), affordable housing, recent health care plans (SHIF), and the centralised school fees payment system (eCitizen).

The judiciary’s adverse orders rattled the President, leading to public attacks on the judiciary, such as calling it a corrupt enterprise, and promises to disobey court orders. In his roadside rallies, he blamed the judiciary for hindering his efforts to improve citizens’ lives. For example, he has publicly claimed that the judiciary has hindered his efforts to create jobs for Kenyans and provide them with free hospital access. Ruto vowed to deal with judges without disclosing how. A supporter has since proposed a bill to pack the Judicial Service Commission with new members, an unconstitutional move unless a referendum amends the Constitution. If unchecked, the President’s actions could severely erode the judiciary’s legitimacy.

The Constitution of Kenya and the Rule of Law

Against the background of the past imperial presidency, the 2010 Constitution was designed to curtail excessive presidential power, establishing an independent judiciary with review powers. The High Court can question any act under the Constitution’s authority, ensuring the President operates within legal boundaries. The judiciary’s role is to uphold the rule of law and constitutional democracy. If the judiciary is at fault, it’s for its commitment to enforcing the rule of law and preserving the Constitution and the Bill of Rights. Succumbing to presidential condemnation would spell the end of our constitutional democracy. The rule of law dictates that any presidential grievances with the High Court should be addressed through appeals to superior courts, not public displays of victimhood. The President’s attacks on judges over their role in upholding the Constitution are a poor attempt to evade political accountability. It’s crucial to remember that anarchy begins with the collapse of the rule of law.

Political attacks and Public confidence in the Judiciary

The 2007 elections, marred by violence, exposed whispered concerns about the electoral process. The opposition leader rejected the results, but refused to challenge them in court, citing perceived judicial bias. This led to a fresh vetting of judges with the 2010 Constitution, aiming to restore public confidence in the judiciary.

However, this constitutional vision is threatened by normalised political attacks on the judiciary, undermining its independence and public trust. While judicial decisions can be criticised, and appeals or reviews sought, there’s a line between valid criticism and political attacks. Politicians using rhetoric to intimidate judges for specific outcomes cross this line into irresponsible criticism.

The office of the Chief Justice and Public confidence

In response to the President’s ongoing attacks on the Judiciary, the Chief Justice sought a meeting, which the President accepted. The public was unaware of the meeting’s details until photos surfaced of the Chief Justice at the State House. It was later communicated that the President promised to allocate additional funding for the judiciary. However, this commitment did not directly address the President’s initial grievances, which were squarely aimed at unnamed “corrupt” judges. The issue of corruption in the judiciary was left to be addressed by the National Council on the Administration of Justice (NCAJ), a statutory body.

From a constitutional law perspective, the meeting raises several issues: Firstly, the Constitution and the Judicial Service Act provide mechanisms for addressing judicial corruption. The President should have lodged a complaint with the JSC, which can remove a judge from office, instead of the NCAJ. Secondly, budgeting is a parliamentary function, not a presidential one, and the Constitution outlines judiciary funding sources to ensure its independence from the Executive. In addition, the timing of the meeting, following the President’s threat to deal with the judiciary, raises questions about its purpose and outcome. In my view, this meeting should not have occurred as the Chief Justice should avoid situations that could compromise her independence. Public speculation is rife about what she may have offered in return for the additional funds.

For the public acceptance of the judiciary, such speculations can be dangerous. Unlike the parliament and executive, the judiciary lacks fiscal control or enforcement power. Its authority hinges on public acceptance of its decisions, necessitating the building of public trust. This sentiment was echoed by a former South African Chief Justice:

The courts could be reduced to paper tigers with a ferocious capacity to roar and to snarl but no teeth to bite and no sinews to execute what may then become a piece of sterile scholarship. Its [the court’s] ultimate power must therefore rest on the esteem in which the judiciary is held within the psyche and soul of a nation. That esteem must substantially depend on its independence and integrity.

Judges, particularly the Chief Justice, must ensure courts don’t become instruments of injustice. They must uphold the court’s constitutional authority and protect judges from external attacks. If the judiciary appears dependent or weak, public confidence will wane.

In conclusion, as the upholder of constitutional supremacy, the judiciary will inevitably challenge those in power. Their decisions may displease some, including the executive. However, this doesn’t justify attacks on judges, especially by the President. Even minor erosion of the rule of law can lead to tyranny. Public resistance is necessary against populist rhetoric blaming the judiciary and Constitution for political failures.