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Cherry-Picking of Judges Is a Great Affront to Judicial Independence

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Uhuru Kenyatta’s refusal to fulfil his constitutional duty to appoint and gazette JSC-nominated judges is a tyranny against the judiciary.

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The 2010 constitution placed an onerous responsibility on the judiciary. That responsibility is to check that the exercise of public power is done in a manner that is compliant with the constitution. The constitution brought everyone, including the president – in both his capacities as the head of state and head of national executive – under the law. Hence, the judiciary has the final word when called upon to determine whether anything done or said to be done by anyone in the exercise of public power is constitutional.

To ensure that judges and magistrates can perform this task, the 2010 constitution created a strong architecture to secure judicial independence. In a nutshell, judicial independence simply means creating the necessary guardrails to ensure that judges and magistrates are and feel fully protected to make the right decision without fear of reprisal and that the judiciary has the facilities it needs to create an enabling environment to facilitate judges and magistrates’ abilities to undertake that core mandate. Ordinarily, the critical aspects of judicial independence include decisional, operational/administrative as well as financial independence.

Operational independence safeguards the ability of the judiciary to run its affairs without interference from other arms of government or from anyone else. Financial independence on the other hand ensures that the judiciary is well funded and fully in control of its funds so that its core duty (decision-making) is not frustrated by either lack of funds or the possibility of a carrot–and-stick approach where the executive dangles funding to extract the decisions it wants. In this regard, the constitution creates a judiciary fund and places it under the administration of the judiciary. Unfortunately, the national government and the treasury have continued to frustrate the full operationalisation of the judiciary fund.

Centrality of an individual judge’s independence

Importantly, the foundational rationale for judicial independence and its different facets is securing the decision maker’s (judge and magistrate) individual independence. This is commonly referred to as decisional independence. In the end, the judiciary exists for only one reason: to adjudicate disputes. In this regard, the person who is charged with decision making is the one who is the primary beneficiary of judicial independence. Of course, ultimately, everyone benefits from an independent judiciary.

Still, the constitution has specific and high expectation of the decision-maker, including that he or she makes decisions based only on an objective analysis of the law and the facts. The decision maker must not be mesmerised or cowed by power. He or she should never be beholden to power – in the present or the future. Simply put, under the constitution, a decision maker should never have to think about personal consequences that he or she may suffer for making a decision one way or another as long as that decision is based on an honest analysis of the law and the facts. Put a bit differently, the decision maker should never have to make (or even think of calibrating) his or her decision to please those in or with power – either within the judiciary or outside it – with the expectation that it will help him or her to obtain professional favours, promotion or to avoid reprisals.

And this is why Uhuru Kenyatta’s cherry-picking of who should or should not be appointed judge is the greatest threat to judicial independence in Kenya.

But first a quick word on what the constitution says about the process of selecting, appointing and disciplining judges.

Selection and disciplining of judges

Before 2010, the president played a controlling role in the selection of judges. This meant that the surest way to become and remain a judge was by being in the good books of the president and his handlers. The result was that the judiciary was largely an appendage of the executive – and could hardly restrain the abuse of public power by the president or other ruling elites. The 2010 constitutional provisions on the judiciary were deliberately designed to eliminate or highly diminish this vice.

The power to select judges was given to the Judicial Service Commission (JSC), a body representative of many interest groups, the president key among them. Constitutionally, the president directly appoints three of the 11 JSC members: the attorney general and two members representing the public. But with his usual ingenuity at subverting the constitution, Uhuru Kenyatta has added to this list a fourth – by telling the Public Service Commission (PSC) who should be its appointee. Regardless, while there are always endless wars to control the JSC especially by the executive, the many interests represented complicate a full takeover of the JSC by the executive or any other interests. And that is partly what the constitution intended to achieve. The law – which the court has clarified numerous times – is that once the JSC has nominated persons to be judges, the president’s role is purely ceremonial, and one that he performs in his capacity as head of state. He must formally appoint and gazette the appointment of the judges. No ifs, no buts.

This is why Uhuru Kenyatta’s cherry-picking of who should or should not be appointed judge is the greatest threat to judicial independence in Kenya.

In fact, the law further clarifies that not even the JSC can reconsider its recommendation once it has selected its nominees. There is a good reason for this unbendable procedure – it helps to insulate the process from manipulation especially once the JSC has publicly disclosed its judge-nominees. Still, the constitution preserves for the president, the JSC and citizens the option of pursuing a rogue nominee by providing the realistic possibility for the initiation of a disciplinary and removal process of a judge even after appointment if there are legitimate grounds for such action.

In this regard, the JSC also has the responsibility to discipline judges by considering every complaint made against a judge to determine whether there are grounds to start proceedings for removal. It is to be noted that the president has more substantive powers in relation to the removal of judges. This is because if the JSC determines that there are grounds for the removal of a judge, the president’s hand is mostly unrestrained with regards to whom he appoints to sit on the tribunal to consider whether a judge should be removed. Unfortunately, there is an emerging trend that indicates that Uhuru undertakes this task in a biased manner by subjectively selecting tribunal members who will “save” the judges he likes.

The injustice of cherry-picking

Now, back to the injustices of Uhuru’s cherry-picking of judges for appointment.

The injustice is horrific for both the appointed judges and those who are not appointed, especially those of the Court of Appeal. Under the 2010 constitution, you do not become a superior court judge by chance.. For High Court judges nominated to the Court of Appeal, this is earned through hard work, countless sleepless nights spent writing ground-breaking judgments and backbreaking days sitting in court (likely on poor quality furniture) graciously listening to litigants complain about their disputes all day, and then doing administrative work to help the judiciary keep going. All this while maintaining personal conduct that keeps one away from trouble – mostly of the moral kind. Magistrates or other judicial staff who move up the ranks to be nominated judges endure the same.

The injustice is horrific for both the appointed judges and those who are not appointed, especially those of the Court of Appeal

If ever there was a list of thankless jobs, those of judges and magistrate would rank high on the list. It is therefore completely unacceptable that a faceless presidential advisor –  probably sitting in a poorly lit room with depressing décor and a constantly failing wifi connection, and who likely has never met a judge – can just tell the president, “Let’s add so and so to the list of judges without ’integrity’. And by the way, from the last list, let’s remove judge A and add judge Z”. Utterly unfeeling and reckless. Worse, the judge is left to explain to the world what his/her integrity issues are when he or she knows nothing about them.

Psychological tyranny

Cherry-picking also creates a fundamental perception problem. Kenya’s Supreme Court has confirmed that perception independence is a critical element of independence. For litigants appearing before the judges who were appointed in cases involving the president or the executive, it will be hard to shake-off the stubborn but obviously unfair thought that the judge earned the appointment in order to be the executive’s gatekeeper. That is what minds do; they conjure up possibilities of endless, and at times, conspiracy-inspired thoughts. Similarly, those who appear before a judge who was left out will likely believe that the judge – who decides a case impartially but against the executive – is driven by the animus of non-appointment. And you can trust the president’s people to publicly say as much and even create a hashtag for it. Yet such perceptions (of a judge who is thought to favour or be anti-executive) are relevant because justice is both about substance and perception.

And that is the psychological tyranny of Uhuru’s unconstitutional action – for both the judges that have been appointed and to those who have not. It is, indeed, a tyranny against the judiciary and, in a smaller way, against all of us. Perhaps just as Uhuru intended it to be.

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

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Twitter: Let It Burn!

Whether or not Twitter survives should be irrelevant to those committed to building a democratic public sphere.

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Twitter: Let It Burn!
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Elon Musk finally bought Twitter. Although everyone expected the move to quickly prove foolhardy, the speed of the implosion has been impressive. The latest gaffe is a failed attempt to monetize verification by requiring paid subscriptions for them, which has led to all manner of comical impersonations (one macabre highlight was a “verified” George W. Bush account tweeting “I miss killing Iraqis. “Tony Blair” responded with “Same tbh”). Some are watching with shock and horror and wondering if Twitter can be saved. But, when sulfur and fire rains, it is best not to look back.

Africa Is a Country managing editor, Boima Tucker, put it best some years ago: “Contrary to the utopian dreams of the early internet, the idea of a more democratic communications space has given way to a system of capitalist exploitation.” The thing to reckon with is the extent to which we have exaggerated the emancipatory potential of networked communication and social media, partly owing to our own psychic overinvestments in it. Which is not to deny that it has never shown democratic and egalitarian potential, but that’s never been what Twitter is forThere can be no right platform in the wrong world.

What was Twitter for then? In the New York Review of Books, Ben Tarnoff describes it as a “network of influence.” In a world characterized by the economization of everything, social media is the place to commodify the self, to transform one’s unique traits and personality into a product for public display. The main imperative online is to “stay on brand,” to cultivate an appealing enough persona in the endless “production of new genres of being human.”

The key contradiction of social media use, of course, is that even though these platforms appear to us as complete products that we participate in and consume, we are the ones responsible for ensuring their possibility in the first place. As the media scholar Christian Fuchs notes, “Digital work is the organization of human experiences with the help of the human brain, digital media and speech in such a way that new products are created. These products can be online information, meanings, social relations, artifacts or social systems.” Thus, it is us who create the value of these platforms.

In a better world, these digital communications platforms would be democratically owned and operated. But one also wonders if in a better world they would be as necessary. Perhaps, when we are less socially disaffected, living in societies with social provision, an abundance of recreational public goods and less exploitative, dignifying work, then we would all have less reason to be online. For now, the question is: in a time when this ideal is nowhere close to being within view, how best can we use platforms like Twitter as tools to get us to that world?

The possible answers here are murky. Twitter seems like a critical piece of infrastructure for modern political life. Musk is not alone in thinking of it as a marketplace of ideas, as something like a digital town square. Yet, and especially in Africa, Twitter is not as popular a platform, and even on it, a minority of Twiteratti exert an outsized influence in terms of setting the discursive agenda. But setting aside the question of who is excluded from the digitalized public sphere of which Twitter is a cornerstone, the important question is whether the quality of political debate that takes place is healthy or desirable at all. Granted, it can be fun and cathartic, but at the best of times, amounts to hyper-politics. In Anton Jager’s explanation, this:

can only occur at a discursive level or within the prism of mediatic politics: every major event is scrutinized for its ideological character, this produces controversies which play out among increasingly clearly delineated camps on social media platforms and are then rebounded through each side’s preferred media outlets. Through this process much is politicized, but little is achieved.

We would lack critical self-awareness if we did not admit that Africa Is A Country is a venue whose existence greatly benefits from an online presence—so it goes for every media outlet. Tarnoff points out that “… if Twitter is not all that populous in absolute terms, it does exert considerable power over popular and elite discourses.” To lack an online presence is to reconcile oneself to irrelevance. Although, the news cycle itself is a disorienting vortex of one topic du jour to the next. It makes difficult the kind of long, slow, and sustained discourse-over-time that is the lifeblood of politics, and instead reduces everything into fleeting soundbites.

Nowhere is the modern phenomenon of what Polish sociologist Zygmunt Bauman called “pointillist time” more apparent than on Twitter. For Bauman, pointillist time is the experience of temporality as a series of eternal instants, and the present moment’s connection to the past and future “turns into gaps—with no bridges, and hopefully unbridgeable.” The consequence of this, is that “there is no room for the idea of ‘progress.’” Living through a mode where everything seems to be happening all at once, is both to experience time as what Walter Benjamin called “a “time of possibilities, a random time, open at any moment to the unforeseeable irruption of the new,” but curiously, at the same time, for everything to feel inert, and for nothing to seem genuinely possible.

For a while, notions of historical progress have been passé on the left, associated with Eurocentric theories of modernity. Now, more than ever, the idea is worth reclaiming. The Right today is no longer straightforwardly conservative, but nihilistic and anti-social, thriving on sowing deeper communal mistrust and paranoia. These are pathologies that flourish on Twitter. The alternative to media-fuelled hyper-politics and anti-politics is not real politics per some ideal type. Politics, in the first instance, is not defined by content, but by form. The reason our politics are empty and shallow is not because today’s political subject lacks virtues possessed by the subjects of yore. It’s because today’s political subject is barely one in the first place, lacking rootedness in those institutions that would have ordinarily shaped an individual’s clear sense of values and commitments. The alternative to digitized human association, as noted by many, is mass politics: only when the majority of citizens are meaningfully mobilized through civic and political organizations can we create a vibrant and substantive public sphere.

AIAC editor Sean Jacobs observed in his book, Media In Post-apartheid South Africa: “the larger context for the growing role of media in political processes is the decline of mass political parties and social movements.” Whether Twitter dies or not, and if it does, whether we should mourn it or not, should be beside the point for those committed to building a world of three-dimensional solidarity and justice.

This post is from a partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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COP 27: Climate Negotiations Repeatedly Flounder

The distribution of global pandemic deaths ignored existing country vulnerability assessments and dealt some of the heaviest blows to the best prepared countries in the world

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As COP 27 in Egypt nears its end, I find it difficult, almost impossible, to talk to my children about climate change. The shame of our monumental failings as a global community to address the greatest crisis our planet has consciously faced weighs too heavy. The stakes have never been higher, the moral quivering of political leaders has never been more distressing.

“All animals are equal but some animals are more equal than others,” goes the famous commandment from George Orwell’s political allegory Animal Farm. It applies with particular acuity to international negotiations, where each country has a seat, but seats hold very different weights. The outcome of the Sharm-El-Sheik conference will in large part depend on what Western governments are willing to commit to and follow up on. Rich European and other Western countries are historically responsible for the bulk of carbon emissions. The moral case for them being the first-movers and the biggest movers on cutting emissions is crystal clear, and genuine commitments on their part may hold the key to opening up the floodgate of policy innovation towards decarbonization in other countries.

In this context, viewed from the Global South, recent events in the country that still held the COP presidency until it was handed over to Egypt appear as signs of the madness that grips societies before a fall. In her short time as head of government in the UK, Liz Truss spoke as if she lived on another planet that did not show signs of collapsing under the battering of models of economic growth birthed under the British Empire, gleefully pronouncing that her three priorities for Britain were “growth, growth and growth.” Her successor, Rishi Sunak, announced that he would not attend the COP 27 climate summit because he had to focus on the UK economy. The silver lining is that Truss did not last long and Sunak was shamed into reversing his decision. In a scathing rebuke, the Spanish environment minister called the shenanigans of British political leaders “absurd” and pointed out that elections in Brazil and Australia show that voters are starting to punish leaders who ignore climate change.

I see another silver lining. Last week, the World Meteorological Organization (WMO) announced that Europe was warming twice as fast as other parts of the world. A similar report was not issued for North America, but other studies indicate faster than average temperature increases across the continent’s northeastern coast, and its west coast was home to one of the most striking heat waves last year, with a memorable summer temperature peak of 49.6°C recorded in British Columbia, Canada.

Professor Petteri Taalas, the WMO secretary-general, emphasized that the findings highlighted that “even well-prepared societies are not safe from impacts of extreme weather events.” In other words, the report should make Europeans think it could happen to us, with “it” being devastating floods on the scale of what Pakistan and Bangladesh recently experienced, or the hunger-inducing droughts afflicting Madagascar and the Horn of Africa. While some may find it dismal that human beings remain relatively unmoved by the plight of other human beings considered too distant or too different, this is a part of human nature to reckon with. And reckoning with it can turn a sentiment of shared vulnerability into an opportunity for the planet.

Climate negotiations have repeatedly floundered on the unwillingness of rich countries to pay developing countries loss and damages to fund their transitions to greener energies and build crucially needed climate adaptability to limit deaths. Underlying such a position is a centuries-old smug belief that Europe and North America will never need to depend on solidarity from other parts of the world. The WMO report calls into question such hubris, as did the Covid 19 pandemic before that.

The distribution of global pandemic deaths ignored existing country vulnerability assessments and dealt some of the heaviest blows to the best prepared countries in the world. Europe and North America, where barely 15% of the world population resides, accounted for more than half of COVID deaths. Turning the normal direction of disaster statistics upside down, high- and upper-middle-income countries accounted for four out of five Covid deaths globally. While some scientists still pose questions over the real death toll in low-income countries, I was grateful to not live in the West during the pandemic. In Burkina Faso, Kenya and Senegal where I spent most of my pandemic months, I often encountered “COVID refugees,” young Europeans who had temporarily relocated to work remotely from Africa to escape pandemic despair at home.

We are at a point in our failures to fight climate change where fiction writers and other experts of human nature are often more useful than scientists in indicating what our priorities should be. Many fiction writers have turned their focus on what will be necessary for humans to remain humane as societies crumble. Before we get to that stage, let us hope that political leaders and delegates keep remembering that climate disaster could very concretely befall them personally at any time. Let us hope that the sense of equal—or more cynically, unpredictable—vulnerability instills a sense of global solidarity and a platform to negotiate in true good faith. Let us hope that we can start talking to our children again about what we adults are doing to avert the disaster that looms over their futures.

This post is from a partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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The Specter of Foreign Forces in Haiti

The so-called ‘Haitian crisis’ is primarily about outsiders’ attempts force Haitians to live under an imposed order and the latter’s resistance to that order.

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What actually happened on the nights of October 6th and 7th, 2022, remains unclear. What reverberated was the rather loud rumor of the resignation of Haiti’s acting prime minister  Ariel Henry. He was a member of President Jovenel Moïse’s pro-US Pati Ayisien Tèt Kale (PHTK) party. (Moïse was assassinated in July 2021.) Had Henry truly resigned? Or was it just a well-propagated rumor? Could it have perhaps been both at the same time: that Henry might have indeed resigned but had been coerced to stay, thus making the news of his resignation spread like gossip that the governmental communication machine had fabricated for public consumption?

Nevertheless, we witnessed the following the next day: in Henry’s address to the nation, he first requested the intervention of foreign military forces in Haiti. He then made a formal request to the United Nations. This call was picked up by international organizations, particularly the Secretary General of the United Nations, António Guterres. In the media coverage of the events, no relationship was established between the (rumored) resignation of the de facto Prime Minister and his request for military intervention. Was it a way to keep our minds occupied while waiting on a response from the international community? Or was the military intervention a promise made by the international community to Henry for the withdrawal of his letter of resignation?

Media coverage has seemingly obscured what happened on October 6th and 7th by choosing to focus solely on the request for military intervention, obscuring a chain of events in the process. Was the same request addressed to the UN and the US administration? Or were these two distinct approaches: one within a multilateral framework and the other within a bilateral framework? Supposing it was the latter, what does this tell us about the Haitian government’s domestic policy, about US foreign policy toward (or against) Haiti, or even about geopolitics (as part of a white-hot world order)—especially in light of US Assistant Secretary of State Brian Nichols’ visit to Haiti, his ensuing meetings, and the presence of US Coast Guard ships in Haitian waters?

At least one thing’s for sure. Since the request for formal intervention and the presence of the US in the form of its warships and its emissary, the question of military intervention has been swiftly framed as a discourse on the supposed “consensus between Haitians.” In reality, it refers to the convergence of interests between the representatives of the de facto Haitian government; the representatives of the Montana Accord (agreed on between civic and political groups in the wake of Moise’s assassination); and the president, Fritz Jean, and prime minister, Steven Benoit, agreed on as part of that accord. The message is clear: If you do not want a military intervention, side with Ariel Henry, who initiated the request himself. Any posture of self-determination must undergo review by Ariel Henry and his crew.

In these circumstances, there can be no self-determination. It is as though those truly responsible for the military intervention (which was already underway) aren’t those who asked for it, but rather those who were unable to thwart it by finding an agreement with the former group. In this sense, the “nationalist” label (the current catchall term which, among other things, is being made to include any praxis refuting the colonial apparatus) refers to doing everything possible to avoid military intervention—and that means doing exactly what the representatives of the “Colonial Capitalist Internationale” want.

American presence in Haiti—in the form of warships and a high-ranking emissary—takes after historical colonial endeavors such as the Napoleonic expedition for the reestablishment of slavery (1802) and King Charles X’s fleet, sent to demand ransom for Haiti’s independence (1825). Yet, in this case, the point is not to put pressure on those who hold the keys to institutions, but rather to avoid losing control in a context where those in government are not only misguided, but also display the greatest shortcomings in managing the lives of the population for the better. The US’s current presence thus more closely echoes the language of the English warship HMS Bulldog, sent to shell the city of Cap Haitien to support President Geffrard against the anti-government insurrection of Salnave.

The Henry government uses the same grammar as its tutelar powers to discuss the current situation. Much has been made of “efforts deployed by the United States and Canada”: they have consisted in flying police equipment into Haiti on Canadian and US military cargo aircraft. Henry and the Haitian National Police offered warm, public thanks for material paid for with Haitian funds some time ago; indeed, these deliveries have come very late, and only thanks to pressure from Haitian civil society actors. More problematic still, the presence of foreign military planes at the Toussaint Louverture Airport in Port-au-Prince has served both as evidence of an ongoing military intervention and as a subterfuge to obtain such an intervention.

This request for intervention, while it seeks to obfuscate this fact, nevertheless exposes the political illegitimacy of the Henry government—made up of members of Henry’s PHTK and former members of the opposition. Its illegitimacy doesn’t rest on the usual discussion (or lack thereof) and confrontation between the governors and the governed, nor on the classic power play between the political opposition and the authorities in place; rather, it is the result of the absolute rejection on the part of Haitians of an order controlled and engineered by the PHTK machine in Haiti for over 10 years with one purpose in mind: defending the neoliberal interests and projects of the Colonial Capitalist Internationale. The request for intervention reveals the fact that the rejection of the PHTK machine is but one part of a broader rejection of the neoliberal colonial order as it has manifested itself in various anti-popular economic projects, which themselves were made possible by many attempts at reconfiguring Haiti socially and constitutionally: consider, to name but a few, the financial project of privatization of the island of Gonâve, the referendum to replace the 1987 Constitution, and others.

For the first time since the US military intervention of 1915 (the centenary of which was silenced by the PHTK machine), we are witnessing a direct confrontation between the Colonial Capitalist Internationale and the Haitian people, as local political go-betweens aren’t in a position to mediate and local armed forces (whether the military, the militias, or the armed gangs) aren’t able to fully and totally repress unrest. In this colonial scenario—drafted in the past five years, maintained and fueled by the geopolitics of “natural disasters,” epidemics, pandemics, and the presence of gangs (simultaneously functioning as the armed extensions of political parties and materializing “disorder”)—the only possible solution to chaos is military intervention by foreign forces.

Yet one cannot pretend that such an intervention will help the Haitian people, and no agreement crafted in the language of the colonial system can stifle popular demands and aspirations which, in the past twelve years, have built what Haitian academic and activist Camille Chalmers calls a real “anti-imperialist conscience.”

What of late has breathlessly been labeled the “Haitian crisis” must instead be identified as the highest point of the contradiction which has brewed throughout the PHTK regime: between the International Colonial Capitalists’ will to force us to live under an imposed order and our resistance to that order.

This post is from a partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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