Every time there is a crisis in Kenya, the country’s fault lines begin to show, whether it is inefficient or corrupt institutions or a leadership that is only interested in its own survival.
During the deeply polarised 2013 and 2017 elections, for example, Kenya’s electoral body showed itself to be either unable or unwilling to conduct fair and transparent elections. Corruption scandals involving past and current electoral commissioners failed to get the commissioners removed, and questions about the validity of the tallying process have not yet been fully answered.
During the Moi regime, as the country’s economy stagnated under the weight of corruption and economic mismanagement, the judiciary proved to be an enemy of the people, always siding with the corrupt. Kamlesh Pattni, one of the masterminds of the Goldenberg Scandal, which almost brought the country to its knees, remains a free man to this day.
After the Westgate Mall terrorist attack in September 2013, Kenyans were horrified to learn that instead of subduing the terrorists and helping hostages within the mall to escape, security officers, including the Kenya Defence Force, had gone on a looting spree in the mall, whose shops were emptied of nearly everything during the four-day siege.
Kamlesh Pattni, one of the masterminds of the Goldenberg Scandal, which almost brought the country to its knees, remains a free man to this day
Under the debt-ridden Jubilee administration, Kenyans have watched their standard of living deteriorate considerably as the promised economic growth fails to reach the majority of the country’s population and as mega scandals, including importation of contaminated food and daylight robbery in government institutions, continue unabated. President Uhuru Kenyatta’s promise to bring corrupt individuals—including the “big fish”—to book has yet to result in convictions or to gain the trust of a cynical citizenry for whom corruption has become a way of life, thanks to the myriad bribes demanded every time they want a government service. With rising Chinese debt and now the coronavirus pandemic, Kenya’s economic future looks even bleaker.
But no matter what the crisis, the Kenya Police is the one institution that consistently fails to live up to its promise and motto (Utumishi kwa Wote – Service to All), as was demonstrated on 27th March when a nationwide indefinite curfew was imposed from 7 p.m. to 5 a.m. in response to the global coronavirus pandemic. Images of Kenyans being badly beaten and humiliated by police officers minutes after 7 p.m. began surfacing on social media. “The curfew has worsened the security in the country. The police are part of the insecurity. Chaos ahead”, posted a Kenyan on Twitter.
As with all types of police brutality in the country, the victims were mostly the poor. Informal settlements in Nairobi and other cities bore the brunt of police brutality during the curfew. (The clueless officers who beat up people with batons seemed completely unaware that they were putting their own lives at risk by violating the “social distancing” directive.)
“The curfew has worsened the security in the country. The police are part of the insecurity. Chaos ahead”
The level of the violence against civilians has once again underscored how poorly trained Kenya’s police “service” is and why it is the most dreaded institution in the country. While in other countries people run to the police for help, in Kenya, at least since the Daniel arap Moi “police state” days, most Kenyans, upon seeing a police officer, run the other way to avoid having to pay a bribe or being arrested on flimsy grounds. Stories of police officers actually assisting people in times of distress or during a crisis are few and far between. We hear of police reforms and “people-friendly” police uniforms, but we have yet to see their results. Police recruitment exercises are so riddled with corruption and rigging, it is not surprising that those who end up as police officers hardly qualify for the job.
Over the years, Kenyans have also become accustomed to riot police turning cities, and in particular low-income neighbourhoods, into battle zones. Officers who kill using live bullets are hardly ever prosecuted. Kenya is notorious for extrajudicial killings (mostly of young men in informal settlements) by the police, a fact that has also been highlighted by international human rights organisations. The Independent Police Oversight Authority—a body created by Kenya’s new constitution to keep police excesses in check—appears to be impotent in the face of all these human rights violations, partly because it has no authority to prosecute.
Police stations in Kenya are known for bribe-taking, and there have been reports of victims of crime being jailed instead of their statements being taken. As always, the poor, those without legal representation and the most vulnerable, such as street children and women vegetable hawkers, end up in police cells.
Meanwhile, the response of the police to the public outcry against the brutality inflicted on Kenyans during the curfew has been contemptuous and insensitive. The police spokesperson and other government officials have essentially blamed Kenyans for bringing the violence upon themselves by disobeying the curfew. Charles Owino, the police spokesperson, derided a news anchor for daring to ask him what instructions the police had been given to enforce the curfew, even suggesting that Kenyans are like “children” who need to be “disciplined”—an attitude reminiscent of the British colonial administration.
The worst part is that the people who were attacked by the police were not deliberately defying the curfew; many were just caught up in the transport chaos and delays precipitated by the curfew and “social distancing” directives. Some using the Likoni ferry in Mombasa found themselves in an unusual situation where the ferries (which have proved to be a dangerous mode of transport in Kenya due to their age and state of dilapidation—another consequence of corruption) had been overwhelmed. A man using the ferry who was badly beaten by the police died from the injuries inflicted on him.
It again feels as if the country is in the midst of a civil war. In 2007-08, as the country was hurtling towards what appeared like a civil war, the police unleashed violence on innocent civilians simply because they could. Traumatised Kenyans who hoped that the presence of police officers and other security agents would protect them from the post-election violence that had engulfed many parts of the country were in for a shock: the police turned against them, shooting innocent people whose only fault was that they happened to be in the “wrong” neighbourhood. Who can forget the image of the young man who was shot and killed in January 2008 by anti-riot police in Kisumu? Or those of people in Kibera and Mathare being shot at and teargassed for no reason other than that they were protesting?
The Waki Commission and human rights reports found that a large number of the casualties during that period were the result of police or security officers’ bullets. When the nation is in a crisis, the police turns against civilians. During the last election, civilians, including children, were shot at randomly. One baby lost her life.
The reality on the ground
The government’s response to the coronavirus pandemic has so far been swift. The health ministry has kept citizens informed of the spread of the virus in the country and the steps taken to quarantine people arriving from abroad, though I am not sure about the value of a night-time curfew if people can mingle during the day. The closure of bars and restaurants, in my view, was sufficient to impose a curfew on those who are likely to spend their evenings outside the home socialising.
President Kenyatta also announced a raft of tax breaks for the poorest percentile, and reduced VAT on items. These are praiseworthy efforts, but like India, which imposed a nationwide lockdown, and has seen the mass exodus of informal workers from cities such as Mumbai and New Delhi (some of whom were sprayed with bleach by the authorities when they returned to their villages), the government has failed to factor in the reality of the majority of citizens’ lives. What does a tax exemption mean to a hawker or a construction worker whose earnings have dwindled to next to nothing as a result of the curfew and social distancing directive? What does working from home look like to someone whose house is a cramped shack in a slum? How does someone who does not own a fridge stock up for a week or more? What do the majority of people in the informal sector do to earn a living when their work is dependent on people not social distancing? How will small businesses where each customer counts survive?
This is not to say that Kenya is exceptional and should not learn from other countries facing the same crisis. The United States and Italy were slow to respond to the pandemic, and as a result, are likely to see many casualties that could have been avoided. (In the interest of humanity, President Donald Trump should lift sanctions against Iran, which is facing a growing coronavirus crisis.) But any directive to handle the crisis must be made bearing in mind the reality on the ground. It would be a shame if more people in Kenya died, not because of the virus, but because they starved to death or because of a preventable illness. Already in India analysts are predicting that malnutrition and starvation levels are set to rise in the country, where more than 80 per cent of the workforce is informal. We must also not forget that there are other diseases in Africa that are likely to kill more people than COVID-19. About 400,000 people in Africa die from malaria each year.
There are things the government can do to take into account the reality of Kenyans’ lives. For instance, instead of relying on an unreliable, corrupt and brutal police service, citizens should be encouraged to monitor their own communities and neighbourhoods. Kenyans willingly abided by the social distancing directive, so it is likely they will voluntarily obey a curfew. If the police is called in to enforce the curfew, it should be instructed not to use violence; those disobeying the instruction should be disciplined.
Secondly, if containment is a strategy to stop the spread of the virus, then people could easily be tested in situ. Mass testing has proved to be extremely effective in countries such as South Korea and Germany. Mobile clinics could go around cities and villages providing this service. Those found with the virus could be quarantined, while those free of it could be allowed to continue with their daily lives—but within certain limits.
Instead of relying on an unreliable, corrupt and brutal police service, citizens should be encouraged to monitor their own communities and neighbourhoods
The United Nations and other international organisations are already mobilising funds for poor countries to help them deal with the crisis. Could these funds be used for mass testing in countries like Kenya? (On the other hand, in times of disaster UN and other donor funds have been known to be diverted to non-target groups, so this is something we should bear in mind. It would be a shame if funds sent to Kenya end up in the wrong hands, as they did when some funds meant for HIV/AIDS patients ended up being stolen by the funds’ managers.)
There is no doubt that the crisis we are now facing is unprecedented. But it would be a double tragedy if the pandemic were to end up killing not just those who have the virus, but also those who cannot afford to eat because they have no source of income. President Kenyatta has said that he has set aside a kitty for poor and vulnerable groups. The question that is on everyone’s mind is: How can we trust a government that has been notorious for stealing from the mouths of babes to implement any kind of cash transfer programme when those in charge might be tempted to steal some or all of it? And how will these vulnerable people be identified given that the country, including government departments, has virtually come to a halt?
At a time like this we should not be questioning our government, or the police. But because we live in Kenya, these questions appear normal in these abnormal times. Will Kenya rise to the occasion and finally fix all that is broken, starting with the police? Will the coronavirus pandemic offer us an opportunity to save us from ourselves?
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Elections? What elections? Abiy is Counting on a Military Victory
Abiy Ahmed’s legitimacy hangs on conjuring up an improbable military victory in the total war he has declared on the people of Tigray.
Selected by the ruling party and later appointed by the Ethiopian parliament in 2018, Prime Minister Abiy Ahmed was expected to deliver the long hoped for post-EPRDF (Ethiopian People’s Revolutionary Democratic Front) era. For some of his domestic and international backers, the post-EPRDF era meant the ushering in of political democratization, further economic liberalization, and “post-ethnic” Ethiopian politics. He has failed to deliver on all three counts.
More than ever, Ethiopian politics is bitterly polarized along ethnic lines. Ethnic divisions have split the Ethiopian National Defence Forces (ENDF). Now, Ethiopia has two armies: the Tigrayan Defence Force (TDF) and the Ethiopian National Defence Force (ENDF). Nor is economic liberalization faring any better. In 2020, foreign direct investment (FDI) dropped significantly to US$2.4 billion from US$ 7.1 billion in 2016. Creditors are not more optimistic. The birr has become the worst performer among 20 African currencies following a slump of 11 per cent against the dollar.
After a decade of double-digit GDP growth, Ethiopia is now growing at only two per cent, an economic slowdown Kevin Daly describes as “the shine [having] come off the star in a big way”. Ethiopia’s democratization, which is the focus of this piece, has also stalled, as illustrated by the uncompetitive and non-participatory elections of 21 June 2021.
Ethiopia’s new leadership was widely expected to spearhead a democratic dispensation in which elections would be freely and fairly contested by all the major political forces in the country. The June 21 election was expected to be both participatory and competitive. It was neither and its outcome was predictable, if not preordained. As everyone expected, the ruling party won overwhelmingly, with some leftover seats going to other parties.
Against the hopes of many, Abiy Ahmed found ways to effectively exclude the real contenders with any chance of defeating the incumbent.
Liquidating the former ruling party and extending the term of office
The first step was to liquidate the former ruling party, the EPRDF, and place the new Prosperity Party in power. The Tigray People’s Liberation Front, one of the core parties forming the EPRDF and currently ruling Tigray, vehemently opposed the formation of the new party, and decided not to join it.
The second step was to postpone the much-anticipated 2020 elections on the pretext of the Covid-19 pandemic. The legality and legitimacy of this decision was fiercely contested, especially by opposition leaders from Oromia and Tigray. Inevitably, those opposition leaders from Oromia with a large following and constituency were jailed or placed under house arrest. By opting to postpone the election and arresting opposition leaders, Abiy extended his own tenure by using a controversial constitutional interpretation.
The third step was waging war on Tigray. The postponement of the election qualifies as one of the triggers of this war. The ruling party in Tigray rejected the postponement, asserting that regular elections are a necessary tool for the exercise of a people’s right to self-determination. Accordingly, Tigray conducted its regional election on 4 September 2020. The election was considered illegal by the incumbent and the federal government cut ties with the Tigray government and suspended the transfer of the regional budget, a move viewed by Tigray as a declaration of war. On 4 November 2020, Tigray was invaded by the combined Ethiopian, Eritrean and Amhara forces.
Subverting the will of the people
These early steps to subvert the will of the people call into question the incumbent’s commitment to a fair and democratic process. Providing a detailed contextual analysis on the state of Ethiopia before the polls, US Senator Bob Menendez and Representative Gregory Meeks said:
Against this grim backdrop, few believe Ethiopia’s upcoming national elections stand a real chance of being free or fair. . . . Prime Minister Abiy and his ruling Prosperity Party have made it clear they intend to continue working from the same authoritarian playbook as their predecessors, squandering Ethiopians’ hopes for the country’s first-ever genuinely democratic elections.
The EU withdrew its earlier decision to send election observers. Though it fell short of denouncing the election, the US government in its statement provided precise reasons why the election would not meet the requisite democratic standards:
The United States is gravely concerned about the environment under which these upcoming elections are to be held. The detention of opposition politicians, harassment of independent media, partisan activities by local and regional governments, and the many inter-ethnic and inter-communal conflicts across Ethiopia are obstacles to a free and fair electoral process and whether Ethiopians would perceive them as credible. In addition, the exclusion of large segments of the electorate from this contest due to security issues and internal displacement is particularly troubling.
The US statement added, “these elections [are conducted] at a time when so many Ethiopians are suffering and dying from violence and acute food insecurity caused by conflict”.
Elections without credibility
The credibility of elections is assessed based on international standards such as those set by the United Nations. Unfortunately, Ethiopia’s recent election does not meet the minimum international threshold of being free, fair, participatory and competitive.
First, this election was conducted during a period of violent conflict that effectively denied the citizens their fundamental democratic rights and the opportunity to participate on an equal basis. Over 100 constituencies in Tigray, Somali, Harari, Afar, and Benishangul-Gumuz, representing well over 18 per cent of parliamentary seats, did not vote. For close to 4 million internally displaced persons (IDPs), this election was a luxury. In Tigray, constituencies in Oromia, Amhara (Oromo special zone and parts of north Shewa), and the border areas of the Amhara, Oromia, Somali and Afar regions face violent conflict. With 7 per cent and 1.7 per cent of the total constituency in Tigray and Benishangul-Gumuz respectively, wars for survival still rage. In parts of Oromia, the region with the largest population and 33 per cent of the total constituency, armed conflict continues. Furthermore, the election was conducted under conditions of pervasive discrimination and profiling based on ethnicity that targeted Tigrayans, Oromos and Gumuz.
The postponement of the election qualifies as one of the triggers of this war.
Second, at the subnational levels and in some urban areas such as Amhara regional state, a few “opposition” parties did manage to win seats. However, in terms of presenting alternative policy options for Ethiopia, these parties failed, as their electoral manifestos were just versions of that of the ruling party. In addition, such results at the subnational level are anomalies, not trends. The trend is the incumbent attempting to re-establish a durable authoritarian regime, this time with a centralizing vision at its core that is diametrically opposed to the federalist vision set out in the current constitution.
Third, this election – like the previous one – was marred by claims of killings, assault, detention, intimidation and harassment of opposition candidates and supporters. In addition, the cancellation of political parties’ registration, litigation, anomalies in voter and candidate registrations, and ballot printing problems have damaged the credibility of the electoral bodies. Moreover, the deferral in holding referenda on requests for state formation in the Southern Nations, Nationalities and Peoples’ Region has stoked discontent. And nor did the media environment allow competitive elections; local media was rigorously censured, and journalists were killed, arrested, and intimidated. International media outlets were not spared either, with the permits of many foreign correspondents cancelled.
It thus came as no surprise when five parties criticised the ruling Prosperity Party for allegedly influencing the electoral process to favour its candidates. The National Movement of Amhara, Ethiopian Social Democratic Party, Afar People’s Party, Balderas for Genuine Democracy and Ethiopian Citizens for Social Justice complained of heavy security and cited a failure to meet minimum standards.
Legitimacy hanging on military victory
Abiy has clipped the wings of democracy. A day after the country went to the polls, and as Addis Ababa enjoyed the fanfare surrounding its “first democratic election”, the Ethiopian army continued its indiscriminate aerial bombardment of Tigray.
Abiy has plunged the country into a civil war that is now spreading from Tigray to other parts of Ethiopia. The war has been manipulated with a view to bolstering Abiy’s popularity and serves as the glue holding his internally fractured support base together. Military victory in Tigray has replaced an electoral win as the litmus test for the legitimacy of his rule.
Yet following the defeat and withdrawal of the Ethiopian army from Tigray, Abiy’s popular base is fast eroding. Now his legitimacy hangs on conjuring up an improbable military victory in the total war he has declared on the people of Tigray. The recent military advances made by the Tigray Defence Forces show that it is not just Abiy who is losing the unwinnable war in Tigray. Ethiopia is also losing its army.
The Second Sex: Women’s Liberation and Media in Post-Independence Tanzania
Fatma Alloo (of the Tanzania Media Women’s Association) on how women used the media and cultural spaces to organize and challenge gender norms.
Fatma Alloo’s activism grew in the decades following Tanzania’s independence in 1961, when she worked as a journalist under Julius Nyerere, or Mwalimu, the first president of Tanzania; co-founded the feminist advocacy group Tanzania Media Women’s Association (TAMWA) in 1987; and co-founded the vibrant Zanzibar International Film Festival (ZIFF) in 1997. Here, she unpacks how women used the media and cultural spaces for social mobilization and shifting patriarchal norms, particularly in periods where they were marginalized from state power. In the “Reclaiming Africa’s Early Post-Independence History” series, and the Post-Colonialisms Today project more broadly, we’re learning from African activists and policy makers from the early post-independence era, to understand how their experience of a unique period of economic, societal, cultural, and regional transformation can aid us in the present day, when questions of decolonization and liberation are more pressing than ever.
Heba M. Khalil: You have lived through so many changes in so many different political systems, from the Sultanate, colonialism, the Nyerere years; you’ve seen the dawning of liberalism and neoliberalism.
Fatma Alloo: As you say, I’ve been through a lot of “-isms” in Tanzania. The other day I was reflecting that although I grew up under colonialism in Zanzibar, as a child I was not aware that it was colonialism, I was not aware there was a Sultanate. We used to run and wave to the Sultan because he was the only one with a shiny, red car and we used to love that car, a red Rolls Royce. But as I reflect now, I realized that these were the years Mwalimu was struggling for independence in Tanganyika.
Then, of course, as you grow, life takes you on a journey, and I ended up at the University of Dar es Salaam in the 1970s, where the Dar es Salaam debates were taking place. Tanzania hosted liberation movements, and that is where socialism, communism, Marxism, Leninism, Trotskyism, Maoism, and feminism were being debated, and that’s where my consciousness grew, because I was in the midst of it. As the progressive, international community at the university was ideologically fired up by Mwalimu’s socialism, I began to understand that even my feminism had come from the West. Nobody had taught me that women lived feminism on the continent. This realization came when, as a student, I participated in an adult literacy program launched by Mwalimu. As students, we were sent to a rural and urban factory to teach literacy, but I emerged from those communities having been taught instead!
Heba M. Khalil: What do you think the role of women was in Tanzania in particular, but also on the continent, in defining the parameters, the choices and the imagination of post-independence Africa?
Fatma Alloo: Women had always been part and parcel of the independence movement in Africa. In Southern Africa and Tanzania they stood side-by-side with the men to fight, so they were very much part of it. The unique thing about Tanzania was that Mwalimu established a party called the Tanganyika African National Union (TANU), which had five wings with women being one of them. The others were youth, peasants, and workers, so as to mobilize society as a whole.
Post-independence is another story, one that very often has been narrated by men in power. There was a struggle for the visibility of women. I remember the debates in South Africa, where the African National Congress was arguing about the women’s wing wanting to discuss power relations. And there was resistance to this, the party leaders would argue first let’s just get independence, let’s not waste our time, women’s liberation will come later. It was a very bitter struggle, and of course after independence, women lost out quite a bit.
Heba M. Khalil: Why were post-independence power structures and ideologies defeated and replaced at some point by new ideologies of liberalism and, eventually, neoliberalism?
Fatma Alloo: The western media portrays Mwalimu as a failure. He has not failed, from my point of view. The whole issue of national unity is important. Tanzania has been a relatively peaceful country. Why? It did not happen by accident, it had to do with Mwalimu’s policies—he realized he had to deal with profound divisions, and he understood the role of education. Administratively, the nation had been inherited after decades of divide and rule policies. It was divided on racial and religious bases, as Tanzania is half Christian and half Muslim. We could have had a civil war, like in Lebanon, or a tribal-oriented conflict, like in Kenya or Libya. Mwalimu really understood this from the very beginning. I remember when we started TAMWA, when the women came together, we had no idea who belonged to what tribe. He was that successful.
We had free medicine, free education, but of course, all that went away with neoliberalism. My generation remembers this, and I think we have to make sure that the younger generation knows the history of the country, knows the literature that emerged from the continent. In my opinion, of all the contributions of Mwalimu, the most important was the peace and unity—amani, in Kiswahili.
Because Mwalimu was so successful, the West, especially Scandinavian countries, made him their darling. As you know, Scandinavian countries had not colonized Africa much, so people also trusted them and accepted their development aid. Very sadly, it did eat away at the success of Mwalimu with his people, and eventually made us dependent on that development aid, which continues to date. Without development aid we don’t seem to be able to move on anything. We have stopped relying on ourselves.
Heba M. Khalil: What was your experience of organizing during the rapid growth of the mass media sector in Tanzania?
Fatma Alloo: I was very active, first as a journalist in the 1980s and early 1990s, and it was extremely different. We were very influenced by Mwalimu’s ideology and ready to play our role to change the world. Mwalimu had refused to introduce television because, he argued at that time, we did not have our own images to portray, to empower our younger generations. He said if we introduce television the images shown will be of the West and the imperialist ideology will continue. In Zanzibar, however, we already had the oldest television on the continent, and it was in color. When Abeid Karume attained power in Zanzibar in 1964, after a bloody overthrow of the sultanate in power, the first thing he did was to introduce not only television, but community media, so every village in Zanzibar already had these images. But television didn’t come to Tanganyika until 1992 (Mwalimu stepped down in 1986), when it was introduced by a local businessman who established his own station. Until then the state had controlled the media, so history began to change as businesses were allowed to establish media.
I remember I was then in TAMWA and we had to encourage a lot of production of plays and other visuals, for which there was no market before. The radio had been powerful; when the peasants went to the countryside, they would take the radio and listen as they ploughed the land. So, the radio was the main tool that was used to mobilize society during Mwalimu’s era.
The press gave women journalists little chance to cover issues of importance to women. We were given health or children to cover as our issues. Before, Tanzania had one English paper, one Kiswahili, Uhuru, and one party paper. By 1986, there were 21 newspapers, and it became easier for us to really influence the press, and TAMWA began talking about issues like sexual harassment at work. But it was a double-edged sword, because the television stations recruited pretty girls to do the news reading, and the girls also wanted to be seen on television as it was a novelty. So, while we were expanding the conversation on the portrayal of women, here was television, where women were used as sex objects. The struggle continues, a luta continua.
Heba M. Khalil: How are movements trying to achieve change on the continent, particularly youth movements or younger generations, by utilizing media and cultural spaces?
Fatma Alloo: The youth need to develop tools of empowerment at an educational level and at an organizational level. Africa is a young continent, and our hope is the youth. Many youth are very active at a cultural level, they may not be in universities but at a cultural level they are extremely visible, in music, dance, and street theater.
At the moment, you see the pan-African dream has sort of lost the luster it had during independence. Even if you look at the literature of that time, it was a collective dream for Africa to unite—Bob Marley had a song “Africa Unite,” we used to dance to it and we used to really identify with it, and the literature—Franz Fanon, Ngũgĩ wa Thiong’o, Sembène Ousmane, Miriam Ba, Nawal al Saadawi—and also the films that came out. In fact, Egypt was the first country to produce amazing films; when we established the Zanzibar International Film Festival (ZIFF), in our first year we showed a film from Egypt, The Destiny by Youssef Chahine.
Zanzibar International Film Festival was born because we asked the question, “If we in Africa do not tell our stories, who will?” We ask that question particularly to train and stimulate the production of films on the continent, including in Kiswahili, because while West Africa has many films, East Africa lags behind. The festival has been in existence for 21 years. This part of the world has more than 120 million people who speak Kiswahili, so the market is there. We also encourage a lot of young producers and we encourage putting a camera in children’s hands, because from my own experience, children get so excited when they can create their own images. Twenty-one years later, these children are now adults, and they are the directors and the producers in this region. So, one has to play a role in impacting change and liberating consciousness on our vibrant and rich continent.
This article is part of the series “Reclaiming Africa’s Early Post-Independence History” from Post-Colonialisms Today (PCT), a research and advocacy project of activist-intellectuals on the continent working to recapture progressive thought and policies from post-independence Africa to address contemporary development challenges. Sign up for updates here.
The State of Judicial Independence in Kenya: A Persistent Concern
Judicial independence is Kenya’s last buffer line, stopping the country from degenerating into absolute tyranny. Judicial independence is a collective national good. It will be protected as such. So long as we may have an independent Judiciary, the great interests of the people will be safe.
On Thursday 22 July 2021, Justice Aggrey Muchelule and Justice Said Juma Chitembwe were subjects of arbitrary search, intimidation, and interrogation by the Directorate of Criminal Investigations (DCI) on the basis of unfounded allegations of corruption.
The arrest, coming in the wake of constant and relentless attacks on the judiciary by the Executive and politicians, left a very sour taste in the mouths of many, bearing in mind that nothing was found to implicate the judges upon searching their respective chambers. Let it be clear that NOBODY is above the law (nemo est supra legis)! Not even the President of the Republic, let alone the judges.
However, there are reasons why there are arguments for special procedures when arresting or dealing with criminal allegations against a sitting judge: the need to preserve the sanctity of the office and the need to manage perceptions with regard to the judicial office. The Supreme Court of India in the case of Delhi Judicial Service Association v. State of Gujarat AIR 1991 SC 2176, (1991) 4 SCC 406 recognized the fact that whereas judges were not above the law, certain guidelines had to be in place to guide the conduct of arrest “in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated”. The concept of judicial independence, it must be recalled, recognizes not only realities but also perceptions that attach to the judicial office.
Chief Justice Howland in the Canadian Supreme Court case of R v. Valente  2 SCR 673 stated as follows with regards to perception as an ingredient of judicial independence: “it is most important that the judiciary be independent and be so perceived by the public. The judges must not have cause to fear that they will be prejudiced by their decisions or that the public would reasonably apprehend this to be the case.’ There is therefore the need to guard and jealously so, the image of the judiciary such as to manage how the judiciary is perceived by the public.
The unsubstantiated claims of corruption, and knee jerk searches without an iota of evidence does not bode well for the perception of the judiciary as a whole, and specifically, for the individual judges involved whose reputations are dragged through the mud, and needlessly so. There are germane reasons why the arrest of a judge should not be a trivial matter. The deference and respect to a judicial office informs the caution exercised in the conduct of arresting a judge. The judicial office fuses with the person of the holder and therefore it becomes necessary to err on the side of caution.
Indeed, Courts elsewhere have endeavoured to engage cautiously in this exercise of delicate funambulism. The Supreme Court of India in the case of K. Veeraswami v Union of India and others, 1991 SCR (3) 189 found that a sitting judge can only be undertaken with permission from the Chief Justice or if it is the Chief Justice who is sought to be prosecuted, from the President.
Equally, the Court of Appeal of the Federal Republic of Nigeria in the case of Hon. Justice Hyeladzira Ajiya Nganjiwa V. Federal Republic of Nigeria (2017) LPELR-43391(CA) held that a sitting judge cannot be prosecuted for offences that would have otherwise been a ground for removal from office.
It is important to note that the grounds for the removal of any judge from office are captured in article 168 of the Constitution of Kenya and they include a breach of the code of conduct and gross misconduct or misbehaviour.
Noteworthy it is to remark that the High Court of Kenya, in laying a principle of constitutional law in the case of Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae)  eKLR ably stated that, “While the DCI is not precluded from investigating criminal misconduct of judges, there is a specific constitutional and legal framework for dealing with misconduct and/or removal of judges.
Consequently, cases of misconduct with a criminal element committed in the course of official judicial functions, or which are so inextricably connected with the office or status of a judge, shall be referred to the JSC in the first instance.” The cumulative conclusion was that the gang-ho recklessness meted on Justices Muchelule and Chitembwe by an increasingly overzealous Department of Criminal Investigations (DCI) was an affront to judicial independence in its functional sense and also in terms of perception. It was a careless move.
If there is any evidence linking any of the judges to any conduct unbecoming, then out of constitutional edict and commonsensical pragmatism, the first point of call should be the Judicial Service Commission (JSC). The Office of the Chief Justice must also be subject of focus during this unfortunate debacle.
The statement emanating from that office in the aftermath of the unfortunate events of 22nd July 2021, was at best timid and disjointed. The statement did not appear to reinforce the constitutional principle that judges cannot be arrested over matters that really ought to be addressed by the Judicial Service Commission. The office of the Chief Justice should have done better.
In summary, let it be proclaimed boldly that judicial independence is too precious a public good that it will be protected at all costs. Let it be lucid that incessant interference with judicial independence will not be tolerated from any quarters.
Judicial independence is Kenya’s last buffer line, stopping the country from degenerating into absolute tyranny. Judicial independence is a collective national good. It will be protected as such! And in the words of John Rutledge, a scholar, jurist and the second Chief Justice of the United States of America; “So long as we may have an independent Judiciary, the great interests of the people will be safe.”
This article was initially published at THE PLATFORM For Law, Justice and Society Magazine
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