The Judiciary has had its week; an outpouring of love and hate, both in equal portions and all directed to the Supreme Court of Kenya.
By the end of the week, and prior to and after the ruling on Raila Odinga’s petition, there seemed to be no let up as holiness joy and Vesuvius anger took hold of both sides of the political divide.
For those who have followed the history of the Judiciary in Kenya, this is just another chapter in the long tortuous journey in which judicial officers have found themselves on the receiving end.
At best they keep quiet and at worst – as they did in the May 1994 David Makali and Bedan Mbugua case – they throw the critics in jail for contempt of court.
It was the Makali and Mbugua case which silenced any criticism of the Judiciary for many years – until that space was opened following the fall of the Kanu regime in 2002.
In the Makali and Mbugua case, the two journalists were accused of publishing an article headlined: ‘Court of Appeal Ruling on Dons case Reeked of State Interference’, quoting remarks by a city lawyer GBM Kariuki. These remarks came after President Moi ruled out the registration of Universities Academic Staff Union (UASU), while addressing a meeting at Kerugoya Stadium, at a time the striking workers were seeking help from the courts.
It was after the Court of Appeal dismissed their application that Mr Kariuki made the remarks saying that the Executive had made the comments when the case was ongoing. As a result, Mr Kariuki described the ruling by the Court of Appeal as “judicial lynching and blackmail tailored to meet the political expedience of the Executive” which the Attorney General, Amos Wako, said were “offensive words”.
The article had further stated that President Moi had promised ruthless action on the striking dons.
After the filing of the contempt of court charges, the Court of Appeal was criticised for sitting as a court of first instance in a case it was the complainant. It was the contention of its critics that the Court of Appeal judges — the same judges Mr Kariuki had complained about — had erred by hearing the case since the then Constitution under which the Court of Appeal had been established had not conferred any original jurisdiction in respect of contempt matters.
Attempts by Ms Martha Karua to have the judges disqualify themselves from hearing the case failed and in a ruling that sent chills to the spine of judicial critics, the court showed it had the capacity to silence critics.
PUNISH FOR CONTEMPT
They said: “The strongest point which was urged in this behalf was that as we are the final court in the land if the court punishes anyone for contempt against itself, such person would have nowhere to appeal… there was no legal basis for asking us to disqualify ourselves from presiding over these proceedings.
“The power to punish for contempt is not and has never been a secret weapon of the courts. It is known or ought to be known by the public that courts do possess that power and in appropriate and necessary circumstances will exercise it. That power resides in the court and any judge of the court can exercise it, unless a particular judge or judges of that court has or have done something which makes him or them unsuitable to act on the matter, like being involved in efforts to bring a prosecution, drafting and approving the charges”.
From then on, criticism of the Court of Appeal was measured and toned down and only resumed when President Mwai Kibaki’s government started a clean-up of the Judiciary where corruption had thrived and where justice was on sale.
That some judges have always found themselves as subjects of criticism, especially when dealing with cases of a political nature, is now well documented. Sometimes, that criticism is far-fetched and the accusations hog-wash.
At other times, the truth is there but masked by the short wigs and robes. Lawyer Paul Mwangi, who is Raila Odinga’s legal advisor, once wrote a book known as Black Bar which documents some of these failings and corruption at the bar and the bench. It should be a must read for students of law.
It is the current upsurge of criticism of the Supreme Court that last week forced the Judicial Service Commission (JSC) chairman, Chief Justice David Maraga, to call a press conference to tell off critics of the Judiciary. This followed the filing of a petition at the JSC demanding the removal of two Supreme Court judges – Justice Isaac Lenaola and Deputy Chief Justice Philomena Mwilu – over alleged gross misconduct during the hearing of the Nasa petition.
But Maraga’s hard-hitting statement – in which he dismissed judicial protesters as “savage (and) intended to intimidate the Judiciary” – has not silenced the critics led by President Uhuru Kenyatta who feels the Judiciary took away his victory after it annulled the August 8 presidential election citing various illegalities and irregularities.
The President and his erstwhile supporters calls it a “judicial coup” — a new term in Kenya’s political lexicon and which has been borrowed from events in other countries. To Raila Odinga’s supporters, the Supreme Court’s decision was a triumph of democracy in Africa and an indicator that the Executive can still be checked together with its excesses. In 2012, Mr Odinga had described the Supreme Court of Kenya as (Koti Bandia) “fake” for throwing out his petition. He later apologised to Supreme Court President Willy Mutunga saying his criticism was directed to the ruling and not the court.
It is now clear that the term “Judicial coup” will feature in weeks to come since it has been picked by Jubilee politicos as their chance to rubbish the majority decision in the Raila Odinga versus IEBC case. But this could be a mild description of the Supreme Court’s decision if you compare it to the description and criticism of the Jomo Kenyatta trial in Kapenguria.
After British Judge Ransley Thacker sentenced the Kapenguria Six to jail, one of Kenyatta’s lawyers, Dudley Thomson recalls in his biography that one lawyer openly described the court as “the judicial murder factory of East Africa”.
The reason for that was because, rather than play the role of an arbiter in the case, Justice Thacker had become partisan from the onset. As historians later found out, Justice Thacker, a man who had a distinguished career, had been recalled from retirement to specifically jail Kenyatta – the evidence notwithstanding. That is how low that court had become.
The evidence against the six charged – Kenyatta, Fred Kubai, Achieng Oneko, Bildad Kaggia, Paul Ngei and Kungu Karumba, was weak. It was weaker on Kenyatta.
Thacker did the trial with gusto since Governor Evelyn Baring had promised to pay him £20,000 from the Emergency Fund vote whose later discovery at the government records became an embarrassment to the British judiciary. The payment was a hefty retirement package compared to Thacker’s annual pension of £474 that was painfully supplemented by an income from his legal practice in Nairobi.
To secure the money to pay the judge and bribe the witnesses, Baring wrote to Oliver Lyttelton, the Secretary of State, in November 1952 saying that “every effort has been made to offer them rewards.”
Thacker, according to historian David Anderson in his book Histories of the Hanged, maintained a “clandestine correspondence” with Baring over the financial promises. He had finally found a chance to “capitalise on the situation… and Baring acting with usual cynicism and ruthlessness, saw that he could not afford to take any risk.”
A known figure in Nairobi, Thacker had since 1938 been a High Court judge in Nairobi before he moved to Fiji where he became the Attorney-General. By retiring in Nairobi, he had hoped, like many settlers, to make Kenya his home under the Union Jack. Thus Kenyatta’s case was both national and personal.
And that is why when Thomson introduced himself to the case prosecutor, Anthony Somerhough, as Kenyatta’s lawyer, Somerhough suggested that they see the judge at the chambers.
Somerhough said: “My learned friend, Thompson, wishes, my Lord to make an application to the Court…”
He did not even finish before the Judge interjected: “Thomson, how do you come to be appearing for these accused?”
As Thomson would later write: “I was sure from his tone that he wanted to know by what means I had heard of the trial. I feigned ignorance of this and replied: “Is your Lordship requesting to see my qualifications to appear?”
“Well, I will certainly have to be satisfied with that as well.”
It is also known that a fake witness, Rawson Macharia, had also been promised a scholarship and money to incriminate Kenyatta. He would later spill the beans after the British reneged on their promise and he was jailed for perjury. But that was years after Justice Thacker had told Kenyatta: “You have successfully plunged many Africans back to a state which shows little humanity…”
Corruption at the Judiciary and interference has roots in the colonial era. And even after independence, the British maintained its own judges – on their contract payroll – who in later years helped in the crackdown on dissidents opposed to Moi’s rule. One of these was Chief Cecil Miller who after becoming Chief Justice helped suspend the Bill of Rights, technically leaving Moi’s critics without recourse to their constitutional rights.
The courts would later be used by the Executive as instruments of torture after confessions extracted through brute force was used by the High Court where Prosecutor Bernard Chunga (later Chief Justice) would haul scared and petrified activists into the courts after official court hours for jail. This was after they were passed through a notorious interrogator, James Opiyo at Nyayo House. The team that carried out these interrogations and torture was trained by ex-Vietnam CIA agents, assisting the Special Branch on how to extract information, according to insiders.
The courts gave this system a legal cover and hundreds of victims went through it including Raila Odinga. That is why protests by Law Society of Kenya addressed to UK Home Secretary Douglas Hurd (now Lord Hurd of Westwell) to cut aid to the Judiciary failed and he was dismissed by Gitobu Imanyara as “being too timid to say the same things about democracy and human rights in Kenya as he did in Russia, China and South Africa”.
Back to the term “judicial coup”, I think this term has been borrowed from events in Thailand some 10 years ago, where the Constitutional Court was accused of the same. Some pundits say that the Constitutional Court saved the country from a military coup by overthrowing the government of Somchai Wongsawat and dissolving his political party over election irregularities.
This is today regarded as the most recent judicial coup where the Judiciary took upon itself to right what it considered political wrongs. Wongsawat had become the prime minister after the previous holder of the position, Mr Samak Sundaravej, had his tenure terminated for having worked as the emcee of two cooking shows while in office. He was said to have violated the law that forbids government ministers in Thailand from holding any other paid employment.
While dissolving Wongsawat’s party and banning him from running, the constitutional court’s president, Chat Chalavorn, said he was dissolving the parties “to set a political standard and an example,” (arguing that) “dishonest political parties undermine Thailand’s democratic system.”
But Chalavorn’s ruling was dismissed by government supporters as a “judicial coup” – a term that has now reached Kenya. In 1930s, it was used in USA and Canada where governments were battling the Supreme Court for space. Actually, conflicts between presidents and the courts are constant and in the US you can go back to a case known as Marbury v. Madison in 1800.
As the Executive and Judiciary seek their operating space, history shows that neither is a paragon of virtue.
To Raila Odinga’s supporters, the Supreme Court’s decision was a triumph of democracy in Africa.