On July 10, President Uhuru Kenyatta questioned the independence of the Judiciary, asserting that the courts were “increasingly getting entangled” in the opposition’s attempts to delay and disrupt the coming elections.
The President’s remarks came in the wake of a controversial High Court ruling on an opposition’s application to cancel a contract awarded to the Dubai-based Al Ghurair Printing & Publishing company to print presidential ballot papers.
This followed another ruling by the court in February that the Independent Electoral and Boundaries Commission’s award of the contract to the company was illegal.
This has been viewed as “designed to scuttle the election” and force a power-sharing deal.
Kenyatta’s Deputy, William Ruto, also challenged Chief Justice David Maraga to explain why he directed the IEBC not to print the ballot papers before the court ruling, a claim Maraga has denied.
This thrusts to the fore the debate on populism and institutional capture, a growing threat to democratic stability.
In a recent study, “Populism and State Capture” published in the Journal of European Political Economy (June 2017), Nicholas Chesterley and Paolo Roberti characterise institutional capture as a core strategy of both populist and non-populist factions of the power elite.
The general expectation is that, once elected, politicians of both types are able to seize control of institutions to ensure their re-election.
Populist politicians need to capture and control institutions to win power and to avoid being voted out of power when their promised boom busts after the election.
Although Kenya’s non-populists have showed their capacity to make sustained and qualitative gains in development, thus progressively transforming lives, reducing poverty and resolving some of entrenched grievances, they have failed to have a firm grip on democratic institutions.
This mistake has posed serious re-election challenges and proved extremely costly for national stability.
On their part, Kenya’s populist/leftist politicians coalesced around ODM/Cord/Nasa opposition failed to win the 2013 presidential contest.
They blamed their loss on their failure to capture and seize control of institutions — especially the Judiciary, IEBC and security forces.
Predictably, between 2013 and 2017, ODM has made determined measures to either seize control of these institutions or to paralyse those that proved total or partially impossible to capture.
Ahead of the August General Election, the nexus between populism and institutional capture is playing out at two main levels.
One level is the IEBC. Prior to the 2013 election, Kenya’s populists believed that a reformed IEBC was firmly in their docket.
Then hell broke loose when IEBC declared Uhuru Kenyatta the victor.
The ODM elite became convinced that the electoral institution was captured by the ruling Jubilee, especially after March 22, 2016, when the Commission declared Cord’s Okoa Kenya initiative to amend the constitution as having “collapsed by operation of the law”.
The Okoa Kenya Bill had proposed the amendment of Article 88 of the Constitution on the composition of IEBC commission to “consist of five commissioners nominated by political parties based on their numerical strength in Parliament in the previous General Election”.
This would have enabled ODM and allied parties to regain control over the IEBC by garnering majority commissioners.
Last year, a combination of anti-corruption and increasingly violent anti-IEBC riots forced the Hassan Commission out of office.
But this did not enable ODM to regain control over IEBC.
Moreover, the new IEBC team has tried to maintain a magisterial neutrality even as the Chair of the Commission, Wafula Chebukati, and the Chief Executive, Ezra Chiloba, hail from western Kenya — considered a “ODM/Nasa” tuff.
However, Jubilee pundits insist the IEBC’s undoing is that it has dithered to assert its own independence.
The second institution is the reformed Judiciary.
Jubilee has charged that the opposition is (mis)using the country’s reformed Judiciary to challenge, filibuster and paralyse IEBC operations and disrupt the election, which Nasa has denied.
Because the vast majority of the judges in the pivotal Supreme Court were either from ODM’s ethnic strongholds or shared its populist/leftist ideological leanings, the Judiciary was seen as a darling of the ODM/Cord axis.
However, the writing was already on the wall that the Judiciary was not going to kowtow to the opposition’s meddling with its independence.
In April 2013, the Judiciary raised the ire of the opposition when the Supreme Court affirmed Jubilee’s victory.
Mr Odinga accused Dr Mutunga of presiding over an “injustice” and told him to stop complaining about bribery allegations levelled against him.
Broadly, it is in the light of this quest for judicial independence that the Jubilee leadership has been accused of “interference”.
However, Jubilee pundits insist that a tiny but dedicated cabal in the corridors of justice consisting of judges and court officers who are blood-relatives of the Nasa flagbearer or his confidants is the real threat to judicial independence and the stability of Kenya’s democracy.
On June 10, Jubilee secretary-general Raphael Tuju went public with the revelation that High Court Judge George Odunga, who has made several controversial rulings on Nasa applications, is married to James Orengo’s niece.
Another Odinga relative calling the shots in the judiciary is Judge William Ouko, a relative of Raila’s wife, Ida.
They also cite a little-known but the chief pointman for the Odinga family in the courts, Frederick Nying’uro, the Personal Assistant to the Chief Justice David Maraga.
“He has consistently ensured that ODM cases are heard by Justice George Odunga or any other favourable judge”, a Jubilee official said.
Jubilee politicians have accused Odunga of suffering from a conflict of interest, saying “the judge should have stated this and withdrawn”.
On December 2016, Jubilee MPs announced plans to discuss the conduct of Judge Odunga over claims that he has been delivering rulings that are sympathetic to the opposition Cord coalition.
Ultimately, the future of Kenya’s democracy rests on the independence of its institutions.
Prof Kagwanja is Chief Executive of Africa Policy Institute and a former government adviser