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Makau Mutua Was Wrong on JSC Reforms

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Professor Makau Mutua’s proposed constitutional amendments targeting the Judicial Service Commission are highly regressive and would neuter the independence of the judiciary.

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In his column in the Sunday Nation of May 31 2020, Professor Makau Mutua argued that there was need for a constitutional amendment targeting the Judicial Service Commission (JSC). Although details about his proposed reforms were scant, he did articulate three core changes on structure, membership and mandate.

On structure, he proposed splitting the JSC in two: an independent body for interviewing judicial candidates and hearing petitions against judges and, a commission chaired by the Chief Justice that would exclusively deal with the judiciary’s administration matters.

On membership, Mutua seemed to prefer dismantling the current membership of the JSC and adopting a model more akin to how other commissions — such as the Kenya National Commission on Human Rights — are constituted. The effect of such a model would be to ensure that institutions with ring-fenced membership in the JSC — the Law Society of Kenya, the Magistrates, Judges of the three Superior Courts and the Public Service Commission — would have no representation in the body. The model would likely then require the President to appoint a recruitment panel for commissioners and then both he and parliament would have the final word on who become JSC commissioners.

On mandate, Mutua argues for reducing the role of the JSC and limiting it to “only interviewing judicial candidates and hearing petitions against judges”. His choice of words is critical, because interviewing judicial candidates is not the same thing as deciding which persons should be appointed judges. The most extreme of Mutua’s recommendations is on the removal of judges, which he proposes be ceded to parliament.

There are many reasons why Mutua’s suggestions are highly regressive and unhelpful. However, before I outline some of those reasons, it is critical to explain what the constitution currently provides in respect of the JSC.

The Constitution and the JSC

The JSC is one of the independent commissions established by the constitution. It has eleven members with its composition constituted through a mixed approach. The first category are permanent positions comprising persons occupying the positions of Chief Justice and Attorney General. The second category are elective positions with the first three being for the judges of the Supreme Court, the Court of Appeal and the High Court. There are three other elective positions, one for Magistrates and the other two for a female and male advocate who are members of the Law Society of Kenya. Position to the third category are appointive, with appointment to the first position being made by the Public Service Commission. The constitution describes the remaining two appointive positions as “one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of National Assembly”.

The JSC’s overarching role is to facilitate the independence, accountability as well as transparency and efficiency of the judiciary. One of its core tasks is nominating and recommending to the President, following a competitive and open process, persons for appointment as judges. Additionally, it is responsible for considering complaints against judges and notifying the President when to form a tribunal to determine whether a judge should be removed from office.

With the exception of the Chief Justice and the Deputy Chief Justice, whose candidatures have to be vetted by the National Assembly, the JSC essentially makes the decisions on persons to be appointed judges. Even for the Chief Justice and Deputy Chief Justice, the President and the National Assembly cannot substitute their choices for those of the JSC. Fundamentally, if the National Assembly declines to approve the person selected as Chief or Deputy Chief Justice, the JSC has to recommend an alternative candidate for vetting.

Of course, both Mwai Kibaki and Uhuru Kenyatta have shown their frustration with the constitutional edict removing from them the power to decide or directly influence the appointment of judges. This was apparent from the first appointments under the 2010 Constitution when Mwai Kibaki rushed to appoint a now retired Judge of the Court of Appeal as Chief Justice without the involvement of the JSC. The courts were quick to assert their authority, suspending Kibaki’s decision and the JSC eventually conducting a competitive process that saw Dr Willy Mutunga appointed Chief Justice. Ironically, Mutunga was perhaps the last person Kibaki had in mind for the position of CJ because, even though Kibaki’s autocratic tendencies now pale in comparison to Uhuru Kenyatta’s, still he seemed to prefer more pliant judges.

Nevertheless, while Kibaki was gracious after the courts blocked his choice, Uhuru has been contumaciously obstinate about seeking to influence the appointment of judges. It started in 2014 when he refused to appoint 14 Judges nominated by the JSC. The courts eventually forced him to make the appointments. Yet, since July 2019 he has refused to appoint 41 new Judges nominated by the JSC despite being ordered to do so by the courts. His court filings on the case show that he believes he can haggle over who he does not want to see appointed judge.

Ring-fencing the independence of the judiciary

The constitutional framework establishing the JSC is perhaps one of the constitution’s strongest tools to guarantee the independence of the judiciary by ensuring that (legally) political actors have little leeway to influence who becomes a judge. Yet, there are many other constitutional provisions that jealously guard the independence of the judiciary. This ring-fencing was not a chance constitutional design occurrence. It was reflectively deliberate. Historically, as Mutua rightly indicated, the propensity of Kenya’s political elite to demand control of the judiciary has been insatiable. Yet, in his wisdom, Mutua asks that parliament be given the mandate to remove judges. If this had been the case, nearly all our leading judges who have displayed exceptional courage in defending the rule of law would be long gone even where the threshold for removal was a vote by two-thirds of parliament. It would be an exceptionally gleeful removal ceremony as punishment for those judges who have displayed inestimable consistency in defending the rule of law and calculated to create a chilling effect on those still in the judiciary.

There is another and more fundamental reason.

The 2010 Constitution created a constitutional democracy. The cardinal feature of a constitutional democracy is the rule of law. Rule of law is a very basic concept which simply means that no person or institution should operate above or outside the law. That includes the President and his relatives. The sacrosanct task of checking that everyone operates within the law is assigned to the judiciary. A constitutional design that ensured that the institution entrusted to call out those who violate the law is to the extent possible devoid of interference was key. The solution was a professional yet diverse institution – the JSC – where no one voice had an eclipsing effect. Importantly, the designers of the Constitution made sure that legally the political class – the President and Members of Parliament – had a minimal, perhaps nearly inconsequential, role in deciding the composition of the judiciary.

Best practice

Mutua anecdotally samples how judges are appointed in different jurisdictions starting from – yes, you guessed right – the United States. He then mentions India and South Africa while providing scant details about the relevance of these countries.

As a starting point, the United States is just the wrong place to go when one wants to argue a case for the independent and professional appointment of judges. To begin with, the United States is not a modern constitutional democracy. In fact, I would argue that it is not at all a constitutional democracy but perhaps merely a struggling democracy with a constitution written by slave owners. Second, recent events have shown how the political class in the United States manipulates judicial appointments to entrench their political ideologies through the courts. I need say no more here.

The most recent detailed study on best practice to guarantee judicial independence through appointments, tenure and removal of judges is by the Commonwealth in 2015. The study builds on and complements the Latimer House Principles, a set of guiding principles promulgated by the Commonwealth Heads of State in Abuja in 2003 for the best ways to ensure a true separation of powers between the three arms of government: the judiciary, legislature and executive. While that study does not rate the legal norms of individual commonwealth countries for their effectiveness in guaranteeing judicial independence, it distils a set of principles for best practice. Kenya’s legal framework, under the 2010 Constitution, would rate relatively highly measured against those criteria.

“Intellectual” primer

We have in the 2010 Constitution the best law we perhaps could hope for to support the independence of the judiciary. It is therefore difficult to understand how the amendments to the constitution that Mutua argues for, superintended by a regime that does not believe in an independent judiciary, can achieve better independence, transparency and accountability of the judiciary.

In ordinary times, Mutua’s proposals would not elicit a response. However, they are made during a season of heightened and choreographed demands by those who control the executive and parliament, to effect amendments that would neuter the independence of the judiciary. His proposals might just be part of the “intellectual” primer that the Building Bridges Initiative is desperately clamouring for to sanitise its upcoming proposals for constitutional change.

Right of Reply

By Prof. Makau Mutua

I hope you’ve been well.  I’ve read with interest your response piece in the Elephant.  It’s challenging and engaging.  Several points.

First, you essentialize democracy without realizing it’s a system of governing people based on the stilts and fictions of liberalism.  Those fictions and stilts are very fragile.  That’s why democracy is an experiment whose outcome is unknown.  That’s why there’s nothing like a “modern” democracy.  Every country has a dynamic and evolving political system within the genre of political thought and history known as democracy.  What would interest me are thoughts about a post-modern post-liberal democracy.

Second, all systems and institutions rely on community ethics and standards of internalized norms and behavior.  You can’t abstract Kenya’s institutions from its corrupt elites in the judiciary, executive, and legislature — and even civil society.  It’s a rotten country, and you know it.  The three arms of the state are all equally corrupt.  They work together to steal and destroy.  That’s why it’s fallacious to imagine the JSC or the judiciary is above the muck.

Third, law is important but not determinative of anything.  Virtually all a society’s choices lie in politics — even law.  If your politics are bad — as we’ve seen in the US, and has been the case since its founding, then your laws are bad.

Fourth, you can’t carve out a sane lane in the judiciary without capturing state power and then leading a moral, normative, and cultural revolution.  Anything else is just elite and bourgeois musical chairs.  Lastly, the founders of the American state weren’t slave owners — rather, they repressed ENSLAVED Africans.  No one can normatively be a slave, but people can be empirically enslaved — I’ve written a chapter on this for a forthcoming book that Caroline Elkins has edited.

On the enslavement question, I just want to add that one human being can treat another as chattel, or commercial property — as Arab, Europeans, and White Americans did to black Africans.  But this empirical transactional concept cannot normatively vacate the humanity of the person treated as chattel.  In other words, one human being cannot be normatively owned by another.  That’s why the term slave is a political assertion without a philosophical basis.  It’s normalized by those who dehumanize black Africans in a bid to turn enslavement into a natural condition.

Finally, let me thank you for keeping the debate I started vibrant.  We can disagree, even in civil society without ulterior motives, or being pawns.  The tyranny of the intellect which requires orthodoxy or unanimity is by definition anti-intellectual.  Let’s continue the debate and engage it in a higher gear when we meet post-COVID!

Prof Makau Mutua

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Waikwa is a constitutional lawyer and co-founder of Katiba Institute.

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What Kenyans Have Always Wanted is to Limit the Powers of the Executive

As Kenya’s political class considers expanding the executive branch of government, no one seems to be talking about restricting its powers.

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The tyranny of numbers, a phrase first applied to Kenyan politics by one of Kenya’s most well-known political commentators, Mutahi Ngunyi, was repeated ad nauseum during the week of waiting that followed Kenya’s 2013 general elections.

In ads published in the run-up to the 2013 elections by the Independent Electoral and Boundaries Commission (IEBC), people were told to vote, go home and accept the results. Encouraged by a state that had since the 2007 post-electoral violence dominated public discourse and means of coercion, the military pitched camp in polling stations. Many streets in Kenya’s cities and towns remained deserted for days after the polls closed.

According to Ngunyi, the winner of the 2013 elections had been known four months earlier, that is, when the electoral commission stopped registering voters.

In a country whose politics feature a dominant discourse that links political party and ethnicity, the outcome of voter registration that year meant that the Uhuru Kenyatta and William Ruto-led coalition, the Jubilee Alliance, would start the electoral contest with 47 per cent of the vote assured. With these statistics, their ticket appeared almost impossible to beat. For ethnic constituencies that did not eventually vote for Uhuru Kenyatta – the Jubilee Alliance presidential candidate in 2013 – a sense of hopelessness was widespread.

For them, a bureaucratic, professionalised, dispassionate (even boring) discourse became the main underpinning of the 2013 elections.

This was not the case in 2017.

Uhuru Kenyatta, pressured by opposition protests and a Supreme Court ruling that challenged his victory and ordered a re-run, met with Raila Odinga – his challenger for the presidency in the 2013 and 2017 elections – and offered a settlement. It became known as the Building Bridges Initiative (BBI).

In his 2020 Jamhuri Day speech, Uhuru reiterated that the purpose of the BBI process is to abolish the winner-takes-all system by expanding the executive branch of government.

As he explained it, the challenge to Kenya’s politics is the politicisation of ethnicity coupled with a lack of the requisite number of political offices within the executive branch that would satisfy all ethnic constituencies – Kenya has 42 enumerated ethnic groups.

The revised BBI report that was released on 21 October 2020 (the first was published in November 2019) has now retained the position of president, who, if the recommendations are voted for in a referendum, will also get to appoint a prime minister, two deputy prime ministers and a cabinet.

Amid heckles and jeers during the launch of the revised BBI report, Deputy President William Ruto asked whether the establishment of the positions of prime minister and two deputy prime ministers would create the much sought-after inclusivity. In his Jamhuri Day speech, the president conceded that they wouldn’t, but that the BBI-proposed position of Leader of Official Opposition – with a shadow cabinet, technical support and a budget – would mean that the loser of the presidential election would still have a role to play in governance.

One could not help but think that the president’s statement was informed by the fact that Odinga lost to him in both the 2013 and 2017 presidential elections –  this despite Odinga’s considerable political influence over vast areas of the country.

The 2010 constitution’s pure presidential system doesn’t anticipate any formal political role for the loser(s) of a presidential election. Raila held no public office between 2013 and 2017, when he lost to Uhuru. This did not help to address the perception amongst his supporters that they had been excluded from the political process for many years. In fact, Raila’s party had won more gubernatorial posts across the country’s 47 counties than the ruling Jubilee Alliance had during the 2013 elections.

While Raila’s attempts to remain politically relevant in the five years between 2013 and 2017 were largely ignored by Uhuru, the resistance against Uhuru’s victory in 2017 wasn’t.

The anger felt by Raila’s supporters in 2017 following the announcement that Uhuru had won the elections – again – could not be separated from the deeply-entrenched feelings of exclusion and marginalisation that were at the centre of the violence that followed the protracted and disputed elections.

The reading of Kenyan politics that is currently being rendered by the BBI process is that all ethnic constituencies must feel that they (essentially, their co-ethnic leaders) are playing a role in what is an otherwise overly centralised, executive-bureaucratic state. This is despite the fact that previous attempts to limit the powers of the executive branch by spreading them across other levels of government have often invited a backlash from the political class.

Kenya’s independence constitution had provided for a Westminster-style, parliamentary system of government, and took power and significant functions of government away from the centralised government in Nairobi, placing significant responsibility (over land, security and education, for instance) in the hands of eight regional governments of equal status known in Swahili as majimbo. The majimbo system was abolished and, between 1964 to 1992, the government was headed by an executive president and the constitution amended over twenty times – largely empowering the executive branch at the expense of parliament and the judiciary. The powers of the president were exercised for the benefit of the president’s cronies and co-ethnics.

By 2010 there was not a meaningful decentralised system of government. The executive, and the presidency at its head, continued to survive attempts at limiting their powers. This has continued since 2010.

As Kenya’s political class considers expanding the executive branch of government, no one seems to be talking about restricting its powers.

Beyond the minimum of 35 per cent of national revenue that the BBI report proposes should be allocated to county governments, it is less clear whether the country’s leaders are prepared to decentralise significant powers and resources away from the executive, and away from Nairobi.

Perhaps the real solution to the challenges of governance the BBI process purports to address is to follow the prescriptions of the defunct Yash Pal Ghai team – it went around the country collecting views for constitutional change in 2003-2004.

According to a paper written by Ghai himself, the Ghai-led Constitution of Kenya Review Commission (CKRC) had no doubt that, consistent with the goals of the review and the people’s views, there had to be a transfer of very substantial powers and functions of government to local levels.

The CKRC noted – much like Uhuru Kenyatta and Raila Odinga now have – that the centralised presidential system tends to ethnicise politics, which threatens national unity.

Kenyans told the CKRC that decisions were made at places far away from them; that their problems arose from government policies over which they had no control; that they wanted greater control over their own destiny and to be free to determine their lifestyle choices and their affairs; and not to be told that they are not patriotic enough!

Yes, the BBI report has proposed that 5 per cent of county revenue be allocated to Members of County Assemblies for a newly-created Ward Development Fund, and that businesses set up by young Kenyans be exempted from taxation for the first seven years of operation. However, this doesn’t amount to any meaningful surrender of power and resources by the executive.

In emphasising the importance of exercising control at the local level, Kenyans told the CKRC that they wanted more communal forms of organisation and a replacement of the infamous Administration Police with a form of community policing. They considered that more powers and resources at the local level would give them greater influence over their parliamentary and local representatives, including greater control over jobs, land and land-based resources.  In short, Kenyans have always yearned for a dispersion of power away from the presidency, and away from the executive and Nairobi. They have asked for the placing of responsibility for public affairs in the hands of additional and more localised levels of government.

This is what would perhaps create the much sought-after inclusivity.

But as the BBI debate rages on, the attention of the political class is now on the proposed new positions within the executive branch. And as the debate becomes inexorably linked to the 2022 Kenyatta-succession race, questions centring on political positions will likely become personalised, especially after the political class cobbles together coalitions to contest the 2022 general elections.

Meanwhile, ordinary Kenyans will be left battling the aftermath of a pandemic, and having to deal with the usual stresses brought on by a political class seeking their votes for another round of five years of exclusion.

The more things change, the more they remain the same.

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Democracy for Some, Mere Management for Others

The coming election in Uganda is significant because if there is to be managed change, it will never find a more opportune moment.

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Democracy for Some, Mere Management for Others
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Western powers slowly tied a noose round their own necks by first installing Uganda’s National Resistance Movement regime, and then supporting it uncritically as it embarked on its adventures in militarism, plunder and human rights violations inside and outside Uganda’s borders.

They are now faced with a common boss problem: what to do with an employee of very long standing (possibly even inherited from a predecessor) who may now know more about his department than the new bosses, and who now carries so many of the company’s secrets that summary dismissal would be a risky undertaking?

The elections taking place in Uganda this week have brought that dilemma into sharp relief.

An initial response would be to simply allow this sometimes rude employee to carry on. The problem is time. In both directions. The employee is very old, and those he seeks to manage are very young, and also very poor and very aspirational because of being very young. And also therefore very angry.

Having a president who looks and speaks like them, and whose own personal life journey symbolises their own ambitions, would go a very long way to placating them. This, if for no other reason, is why the West must seriously consider finding a way to induce the good and faithful servant to give way. Nobody lives forever. And so replacement is inevitable one way or another.

But this is clearly not a unified position. The United Kingdom, whose intelligence services were at the forefront of installing the National Resistance Movement/Army (NRM/A) in power nearly forty years ago, remains quietly determined to stand by President Yoweri Museveni’s side.

On the other hand, opinion in America’s corridors of power seems divided. With standing operations in Somalia, and a history of western-friendly interventions in Rwanda, the Democratic Republic of Congo, South Sudan, and even Kenya, the Ugandan military is perceived as a huge (and cut-price) asset to the West’s regional security concerns.

The DRC, in particular, with its increasing significance as the source of much of the raw materials that will form the basis of the coming electric engine revolution, has been held firmly in the orbit of Western corporations through the exertions of the regime oligarchs controlling Uganda’s security establishment. To this, one may add the growing global agribusiness revolution in which the fertile lands of the Great Lakes Region are targeted for clearing and exploitation, and for which the regime offers facilitation.

Such human resource is hard to replace and therefore not casually disposed of.

These critical resource questions are backstopped by unjust politics themselves held in place by military means. The entire project therefore hinges ultimately on who has the means to physically enforce their exploitation. In our case, those military means have been personalised to one individual and a small circle of co-conspirators, often related by blood and ethnicity.

However, time presses. Apart from the ageing autocrat at the centre, there is also a time bomb in the form of an impoverished and anxious population of unskilled, under-employed (if at all) and propertyless young people. Change beckons for all sides, whether planned for or not.

This is why this coming election is significant. If there is to be managed change, it will never find a more opportune moment. Even if President Museveni is once again declared winner, there will still remain enough political momentum and pressure that could be harnessed by his one-time Western friends to cause him to look for the exit. It boils down to whether the American security establishment could be made to believe that the things that made President Museveni valuable to them, are transferable elsewhere into the Uganda security establishment. In short, that his sub-imperial footprint can be divorced from his person and entrusted, if not to someone like candidate Robert Kyagulanyi, then at least to security types already embedded within the state structure working under a new, youthful president.

Three possible outcomes then: Kyagulanyi carrying the vote and being declared the winner; Kyagulanyi carrying the vote but President Museveni being declared the winner; or failure to have a winner declared. In all cases, there will be trouble. In the first, a Trump-like resistance from the incumbent. In the second and the third, the usual mass disturbances that have followed each announcement of the winner of the presidential election since the 1990s.

Once the Ugandan political crisis — a story going back to the 1960s — is reduced to a security or “law and order” problem, the West usually sides with whichever force can quickest restore the order they (not we) need.

And this is how the NRM tail seeks to still wag the Western dog: the run-up to voting day has been characterised by heavy emphasis on the risk of alleged “hooligans” out to cause mayhem (“burning down the city” being a popular bogeyman). The NRM’s post-election challenge will be to quickly strip the crisis of all political considerations and make it a discussion about security.

But it would be strategically very risky to try to get Uganda’s current young electorate — and the even younger citizens in general — to accept that whatever social and economic conditions they have lived through in the last few decades (which for most means all of their lives given how young they are) are going to remain in place for even just the next five years. They will not buy into the promises they have seen broken in the past. Their numbers, their living conditions, their economic prospects and their very youth would then point to a situation of permanent unrest.

However, it can be safely assumed that the NRM regime will, to paraphrase US President Donald Trump, not accept any election result that does not declare it the winner.

Leave things as they are and deal with the inevitable degeneration of politics beyond its current state, or enforce a switch now under the cover of an election, or attempt to enforce a switch in the aftermath of the election by harnessing the inevitable discontent.

Those are the boss’ options.

In the meantime, there is food to be grown and work to be done.

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Uganda Elections 2021: The Elephant Website Blocked Ahead of Poll

For about a month now, some of our readers within Uganda have been reporting problems accessing the website. Following receipt of these reports, we launched investigations which have established that The Elephant has been blocked by some, though not all, internet service providers in the country.

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Dear Readers/Viewers,

For four years now, The Elephant has been one of the premier online sources of news analysis in the East African region with a fast-growing readership across the African continent and beyond.

For about a month now, some of our readers within Uganda have been reporting problems accessing the website. Following receipt of these reports, we launched investigations which have established that The Elephant has been blocked by some, though not all, internet service providers in the country.

We have further ascertained that the directive to do so came from the Uganda Communication Commission (UCC) and was implemented beginning 12 December 2020, when we noticed a sudden traffic drop coming from several providers in Uganda, including Africell and Airtel. A forensics report, which provides technical details on the blocking, is available here.

We have written to the UCC requesting a reason for the blocking but are yet to receive a response.

The Elephant wholeheartedly condemns this assault on free speech and on freedom of the press and calls on the Ugandan government to respect the rights of Ugandans to access information.

We would like to assure all our readers that we are doing everything in our power to get the restrictions removed and hope normal access can be restored expeditiously.

As we do this, to circumvent the block, a Bifrost mirror has been deployed. Readers in Uganda can once again access The Elephant on this link.

Thank you.

Best Regards

John Githongo
Publisher

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