When Kenyans strongly endorsed the new Constitution in August 2010, they thought they had finally done away with the excesses that had been the hallmark of the Executive since independence.
With the Constitution’s robust checks and balances, Kenyans thought scenes of police unleashing violence on university students or academics and political dissenters were behind them.
They thought there would be no more meddling with independent state institutions, such as the judiciary, by State House, a practice which was routine during the Kanu regimes of President Jomo Kenyatta and his successor Daniel arap Moi.
However, this week, Kenyans witnessed a return of these old practices in what is being termed a gradual but accelerated erosion of the democratic gains made over the decades through sweat and blood.
“We are already there, in the dark ages once again,” said lawyer Gitobu Imanyara who supported President Uhuru Kenyatta during the August 8 polls but who feels that he is taking the country in the wrong direction.
“The current leadership opposed the new constitution in the first place. They felt their predicaments at the ICC (International Criminal Court) were brought about by the new laws and they set out to dismantle them,” said Mr Imanyara.
President Mwai Kibaki, who promulgated the new constitution, had less than two years to implement it, and the promise of the new laws was supposed to come to fruition under President Uhuru Kenyatta who came to power in 2013.
However, under his leadership, there have been many attempts to change laws, some successful; some not.
In 2015, Parliament amended the Judicial Service Act which required the Judicial Service Commission (JSC) to forward only one name to the President for appointment as Chief Justice.
The plot to have JSC submit three names to the President for consideration, thus giving the Head of State more leeway in appointing a CJ seen to be friendlier to the regime, was only defeated in the courts.
Early last year, President Kenyatta acquired powers to hire and fire top police chiefs through a Miscellaneous Amendment that removed the role of Parliament and reduced that of the National Police Service Commission in vetting and hiring them.
Furthermore, attempts have been made by the party to whom the Government accuses of working for the Opposition.
In fact, last month the Leader of Majority in Parliament, Garissa Town MP Aden Duale, said Mr Ouko’s removal alongside that of National Land Commission chairman Muhamad Swazuri, are Jubilee’s priorities in their second term.
There are two key areas that define the new Constitution — the dispersal of executive powers through devolution and the creation of new or strengthening of independent institutions to check on the Executive.
Whereas the promise of the new constitution has been realised in certain areas, such as devolution, the country has witnessed an increased effort by the State to curtail the work of, or entirely do away with, some of the independent offices.
Following the annulment of the August 8, 2017 presidential poll, Jubilee Party has been on the warpath with the Judiciary, especially the Supreme Court, which it accuses of having “stolen” their victory.
In an uncharacteristically coarse language, President Kenyatta and his Deputy William Ruto promised to deal with the “wakora” (fraudsters) — the four Supreme Court judges who voted in favour of annulling their victory.
The culminations of Jubilee’s sustained onslaught on the court is a Bill that was tabled in Parliament this week which seeks to and make it almost impossible for the Supreme Court to overturn future election results.
While President Kenyatta has defended the Bill saying it was necessary in order to prevent the court from reaching a similar decision on flimsy grounds, critics see a sinister ploy to undermine the institution.
The National Super Alliance (Nasa) presidential candidate, Raila Odinga, has termed the proposed amendments an act of “extreme provocation” and an “attempt to change goalposts” ahead of the repeat election on October 26.
However, Senate Deputy Speaker and Tharaka Nithi County Senator Kithure Kindiki said the amendments are necessary to close gaps identified by the Supreme Court.
“It is about curing illegalities and voiding a case where individuals sabotage an election. The question of undoing gains does not arise, it is misleading,” he said.
Jubilee managed to push through their desired amendments through their numerical strength in Parliament. They changed Parliamentary Standing Orders that require a Bill to be published within 14 days after tabling, to only one.
Outspoken Elgeyo Marakwet County Senator Kipchumba Murkomen said fears that the old habits and practices of Kanu are coming under President Kenyatta’s rule are unfounded.
“The very people who brag that they fought for our constitution are now its greatest danger,” said Mr Murkomen, who is also the Senate Majority Leader.
Criticised at first as doomed to fail, the dissolution of small parties to form Jubilee Party has, in hindsight, proved a masterstroke. The party now has an overwhelming majority in the Senate and the National Assembly which allows it to pass laws as they wish without the need for bipartisan considerations.
This consolidation of power by the ruling party has blurred the line between the ruling party and the State.
Still seething from his annulled victory, President Kenyatta told a meeting of Jubilee supporters from Ukambani who paid him a courtesy call at State House on September 11, that the party would use its Parliamentary strength to impeach Mr Odinga if he wins the repeat poll.
“In the National Assembly, with more than 200 members we are 13 members shy of a two-thirds majority, meaning we can change the Constitution. Even if he is elected we have the opportunity in Parliament within two [to] three months to impeach him,” he said.
Interestingly in mid-October, last year, top Jubilee officials drawn from the 47 counties visited the Communist Party of China on a month-long training on how to run and manage a party “for 100 years without collapsing.”
One cannot miss the subtle implications of this trip. For nearly a century now, the Communist Party has controlled every facet of life in China. To be expelled from the party means an end to one’s political or even professional career.
During the eras of President Jomo Kenyatta and Daniel arap Moi, State House nearly became party headquarters complete with parliamentary group meetings and other party caucuses, chanting of party slogans and wearing of party colours.
President Kibaki embraced it half-heartedly, but the practice has now returned in all its former glory under President Kenyatta who has been hosting huge delegations.
Prof Peter Ndege, who teaches history at Moi University, says: “Presidential absolutism is the cancer in our body politic and it has the tendency to reproduce itself like biological organisms.”
He says the founding President and his successor, Moi, fortified the presidency, with the latter going further to co-opt Kanu into the state craft and at some point the party was really the government.
Further attempts at democratisation since then have fallen prey to a class of political aristocracy which came up with ethnic parties, he said.
A group of Jubilee MPs and party officials have indeed encouraged President Kenyatta to be a “benevolent dictator”, just like Rwanda’s Paul Kagame. Kiharu MP Ndindi Nyoro and Jubilee Party vice-chairman David Murathe have openly called on the President to adopt this posture.
However, former Subukia MP Koigi wa Wamwere, who was detained and finally exiled for a long period for his fight against the one-party rule of President Kenyatta senior and his successor President Moi, condemned the proposal by the two Jubilee leaders.
“The reason Kenyans fought against colonialists was to get independence and the reason we fought for the Second Liberation was to have democracy,” he said. “The way we cannot afford to lose our independence is the same way we should not agree to lose our democratic gains,” he said.
Ironically, Mr Nyoro represents a constituency that was once represented by Second Liberation icon Kenneth Matiba whose valiant fight for multipartyism in 1991 earned him a period in detention during which he developed health complications from which he has never recovered.
The arrest of (Nasa) twice this week also points to intimidation by the State of opposition figures.
Mr Owino was first arrested on Monday and charged on Tuesday with subversion after uttering words seemed to demean the President and his mother during a political rally in Nairobi last week.
Although the court released him on bail on Wednesday in connection with the first charge, police officers pounced on him outside the courts, held him overnight and charged him the next day with assaulting a man during campaigns for the August polls.
“Arbitrary arrests have become the order of the day with right to fair hearing disregarded,” said Siaya County Senator James Orengo, who was also one of Mr Owino’s lawyers.
Mr Owino’s arrest sparked pockets of riots by students of the where Mr Owino was a long-serving chairman of the students’ union. The protests attracted a harsh crackdown by the police evidenced by videos that were secretly taped of police officers clobbering students in their lecture halls.
Historically, university students have been part and parcel of Kenya’s democratic struggle and Wednesday’s police assault on UoN students brought back memories of Moi’s harsh crackdown on radical university students. Efforts to reach the Inspector-General for a comment on what action he has taken against the officers were fruitless as he did not return our calls.
Dr Wandia Njoya, a Daystar University lecturer, attributed the return of autocratic tendencies to what she called low immunity occasioned by a distressed economy and a bitterly contested election.
“We have not completely recovered from our pre-2010 condition,” she said, alluding to the period before the passing of the new laws. “The remnant germs of oppression are now thriving because of our low immunity,” she said.
On Thursday, Nasa deputy presidential candidate Kalonzo Musyoka and Bungoma County Senator Moses Wetang’ula claimed that attempts had been made to bar them from travelling to Uganda for a graduation ceremony.
Two weeks ago, State House banned all international travel by civil servants ostensibly to reduce the wage bill, but the move has been condemned as retrogressive as it also affects academics and researchers travelling for self-sponsored seminars or teaching assignments abroad.
Alongside the judiciary, the civil society has come in the crosshairs of Jubilee Party which accuses non-governmental organisations of working together to mount what they have termed a judicial coup.
On Saturday, the government cut ties with an international NGO it accuses of having undue influence on the Judiciary.
In a letter to International Development Law Organisation (IDLO) Director-General Irene Khan, Foreign Affairs Cabinet Secretary Amina Mohamed said the agreement between Kenya and the organisation was being suspended.
“The Government of the Republic of Kenya and International Development Law Organisation (IDLO) negotiated and signed a Host Country Agreement on 31st December 2016 to establish a branch IDLO Office in Kenya. This is to convey to you the decision of the Government to suspend the Host Country Agreement with immediate effect until further notice,” read the letter dated 13th September 2017.
The letter was copied to Attorney-General Professor Githu Muigai and Director of Immigration Maj-Gen (rtd) Dr Gordon O. Kihalang’wa.
In the same breath, the government is now lobbying 14 other counties that have ties with IDLO to terminate them.
On Wednesday, Ms Mohamed was in Egypt where she informed Egyptian authorities on the workings of IDLO.
Soon after the election was annulled, the Non-Governmental Organisations (NGOs) Coordination Board cancelled the licences of three NGOs which it claimed were in the payroll of “foreign masters” to help the judiciary mount the coup.
The board cancelled the licences of the Kenya Human Rights Commission whose chairman is US-based Prof Makau Mutua, and the African Centre for Open Governance headed by Gladwell Otieno, both critics of President Kenyatta.
It is hard to believe Mr Mahamed Fazul, the board’s chairperson, acted unilaterally given the fact his organisation falls under the ministry of Interior and Coordination of National Government, which falls in the Office of the President.
Though the Constitution explicitly forbids civil servants from engaging in overt partisan political activities, the government welcomed the participation of several senior state officers in raising money for President Kenyatta.
Mr John Njiraini, the Commissioner-General of the Kenya Revenue Authority (KRA), and Mr Joseph Njoroge, the Principal Secretary in the ministry of Energy, are members of Friends of Jubilee, a lobby that supports President Kenyatta’s re-election.
The duo said they were members of the group in their personal, not professional, capacities and hence owe no one answers.
During the regimes of President Moi and President Kibaki, civil servants heading key government institutions were accused of milking them dry to fund the presidential campaigns.
Jubilee’s current manoeuvres against the constitution call to mind the moves made by Jomo Kenyatta soon after independence that culminated in the creation of an imperial presidency.
The first was the dissolution of the opposition Kenya African Democratic Union (Kadu) and its merger with the ruling Kenya African National Union (Kanu), thus creating a monolithic party.
This was followed by the abolition of the Senate in 1966, which Kadu had agitated for during negotiations for independence as a way of protecting the interests of minority communities.
In October 1969, Kenya became a de facto one party state following the banning of Kenya People’s Union, the party that Jaramogi Oginga Odinga formed after being fired as vice-president by President Kenyatta in 1966.
All these moves, coupled with the use of the security apparatus, were intended to give President Kenyatta an upper hand in his fight against his friend-cum-enemy, Jaramogi.
Following the 1982 coup, President Moi further consolidated his power by abolishing guarantee of tenure for top constitutional office holders, among them the Attorney- General and the High Court judges.