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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We Are So Much Better Than the Elites Make Us Out to Be
To resist the efforts of Cambridge Analytica and similar social saboteurs in the media and the academy, we must believe in our capacity to vote on a diversity of issues.
Theatre scholar Gĩchingiri Ndĩgĩrĩgĩ writes that in 1991, at the height of the clamour for multi-partyism, the government denied a license for the staging of Drumbeats of Kirinyaga, a play by Oby Obyerodhiambo.
The reason given was that the play portrayed an ethnically diverse and politically cohesive Kenya, which contradicted the president’s argument at the time that Kenya was too ethnically divided for multi-partyism.
While President Moi was claiming to care for Kenyans who are too tribal, his government was ironically also suppressing any public display of Kenyans transcending their tribal identities. The government needed to encourage tribalism among Kenyans in order to give itself something to cure.
We were shocked by the confirmation by a young man, Christopher Wylie, that Cambridge Analytica played a major role in polarizing Kenyans during the 2017 elections. Some were insulted that foreigners would deliberately diffuse messages that would polarize us ethnically. Others, however, argued that Kenyans are tribalist, with or without Cambridge Analytica. I think the reality is more complicated than that.
Cambridge Analytica’s role in polarising Kenyans is part of the larger efforts of global and local elites to keep convincing Kenyans that we vote on nothing else but tribe. The elites manipulate culture in order to coerce us to believe that tribalism comes naturally to us Africans. And yet, the reality is something closer to what the government censor did in 1991.
The role of politicians in keeping ethnic temperatures high has been repeatedly stated. But there are two other pillars that keep Kenyans convinced that they are naturally and inevitably tribalist: the use of culture and research by envoys, journalists, researchers, and now, by Cambridge Analytica.
For instance, while Kenyans called for electoral justice, the US ambassador kept framing Kenya’s problem as “long-standing issues” that should be addressed through reconciliation between NASA and Jubilee. The ambassador was savvy enough to know that using the word “tribal” would evoke memories of colonial anthropology. But even “long-standing” is just as insidious, because it appeals to the colonial narrative of Africans as stuck in the past.
Similarly, articles in the local and international media often used tribal data to predict a Jubilee win. The research they quoted almost always used tribe as the major factor in elections, yet there are other factors that influence the way Kenyans vote, such as income, gender, urban migration, economic inequality or voter frustration with politicians.
If a basic rule of good research is that it cannot always use the same variable, it means that the researchers are perpetuating tribalism through faulty research. Yet the variables exist. For instance, our media rarely mention economic inequality as a factor influencing election outcomes, and yet one article in Jacobin found a strong correlation between economic inequality and votes for Raila Odinga.
In the New York Review of Books, Helen Epstein queried the sampling methods of predictions of election results, pointing out that some researchers worked backwards from a known result to a sample, rather than the other way round. Some researchers went to Luo regions and predictably projected a high Raila vote, and to Kikuyu populations and predicted a high Uhuru vote, but did not go, for example, to Kakamega, Bungoma, Busia, Kisii Nyanza, Garissa and other regions where Jubilee claimed to have won a majority.
Other times, electoral predictions remain unquestioned because claims are made from people with perceived academic clout. For instance, Mutahi Ngunyi gave prestige to the concept of “tyranny of numbers”. Most media did not question the validity of his concept, even when a poorly circulated video done by AfriCOG showed that the premises of Ngunyi’s argument were rather weak.
If Kenyans were naturally tribalistic, the politicians, intellectuals and envoys would not need to keep reminding us of it. And there is a political interest in insisting on our tribalism: it prevents us from asking questions about social justice or worse, from organizing ourselves along other lines such us age, profession, economic status and gender.
If a basic rule of good research is that it cannot always use the same variable, it means that the researchers are perpetuating tribalism through faulty research.
The nightmare of the foreign and local elite is of Kenyans organizing as the poor, youth, women or workers, because then, the numbers would surely have an impact. And politicians would not get automatic godfather status like they do as tribes. They would have to pass through institutions like associations and unions, where success is not guaranteed. For instance, politicians’ efforts to divide the doctors along tribal lines backfired and instead produced a hash tag #IAmaTribelessDoctor.
It does not matter how many Kenyans Cambridge Analytica influenced. Even one Kenyan is one Kenyan too many. What matters is that it appealed to Kenyans’ worst fears, essentially hoping to whip up hysteria, just so that the president could win the vote. Our dignity was cheaper than Muigai’s desire to win. Six million dollars cheaper.
But the worst part of the tribal propaganda is that it is based on convincing Kenyans to believe so little of themselves. To resist the efforts of Cambridge Analytica and similar social saboteurs in the media and the academy, we must believe in our capacity to vote on a diversity of issues. For as Daisy Amdany put it, “We are so much better than what the elites make us out to be. It’s time to believe it, receive it, be it and live it!”
9/11 and the United States-Kenya Relationship
Would US-Kenya relations be significantly different today had the al-Qaeda attacks not taken place?
Looking at the sweep of twenty years, a generation, how have the 11 September 2001 al-Qaeda airplane crash attacks on New York and Washington impacted the relationship between the United States and Kenya?
To start to answer that question, we might create a counterfactual and imagine how things might have proceeded without the shock and horror of the (partial) success of al-Qaeda’s terror attacks that day, especially the falling bodies and fiery collapse of the Twin Towers of the World Trade Center. I think the basics of the relationship would likely have been quite similar.
Osama bin Laden’s declared al-Qaeda war against the United States and its allies, including Kenya, was well along by 9-11 but it had not captured a lot of attention from the public in the United States and had little impact on American daily life and politics. For me, working in the defence industry as an attorney for a large aerospace company at their shipbuilding operation in Mississippi, terrorism had been brought home a year earlier when the damaged hull of the USS Cole, which had been bombed by al-Qaeda off Yemen, was brought to us for repair on the Gulf of Mexico on a giant heavy-lift ship. By coincidence, I was in Northern Virginia, at a seminar not far from the Pentagon on the infamous day of 9-11 itself. We were not so “on-line” in those days, and it was not until a break that we saw on a television set pulled into the hotel lobby that a plane had crashed into the Pentagon and gradually became aware of what was happening.
It was only then that most Americans really got a sense of what Kenyans and Tanzanians had seen and felt during the 1998 embassy bombings.
To understand what did and did not change in the American-Kenyan relationship, we probably need to go back further to Jomo Kenyatta seeking American military assistance from the Ford Administration in the 1970s, through Minister Mwai Kibaki and others, when Kenya faced threats from Uganda’s Idi Amin, and potential hostilities from Somalia’s Siad Barre in the context of a possible disruption of Kenya’s security relationship with Ethiopia following the overthrow of Haile Selassie by the Derg and Britain’s unwillingness to show support.
By 1977, during the Jimmy Carter administration, the US had started provided police training in Kenya. The Norfolk Hotel was bombed by Palestinian terrorists in 1980, in apparent retaliation for Kenya’s cooperation with the Israeli rescue operation at Entebbe in Idi Amin’s Uganda in 1976.
Therefore, Kenya’s recognition of its insecurity in a “rough neighbourhood”, the related exposure to terrorists, and the desire to rely partly on and cooperate with the United States on security matters, was a component of the relationship for years before al-Qaeda co-founder Osama bin Laden moved from Afghanistan to Sudan in early 1991, from where he was reportedly funding jihadist militants and insurgents in many countries. America’s Operation Hope which was providing famine relief in Somalia under President George H.W. Bush in December 1992, ended up with the US embroiled in clan warfare the following year as part of a UN peacekeeping mission, with al-Qaeda alleged to have contributed to the “Battle of Mogadishu” fiasco that influenced America’s decision to withdraw in early 1994. In the meantime, the first attempt to blow up the World Trade Center had failed in 1993.
It was only then that most Americans really got a sense of what Kenyans and Tanzanians had seen and felt during the 1998 embassy bombings.
Although Sudan evicted Osama bin Laden who established himself in Taliban-ruled Afghanistan in 1996, al-Qaeda continued to operate in East Africa and a few months after bin Laden’s February 1998 fatwa against Americans and their allies—presumably including Kenyans—came the embassy bombings in Nairobi and in Dar es Salaam.
Sceptical about American “nation building”, George W. Bush took office in January 2001 on a platform of “compassionate conservatism” that was perhaps most positively expressed in expansive new aid programmes that shaped the US-Kenyan relationship. Of particular note is PEPFAR, the President’s Emergency Plan For Aids Relief, enacted in 2003, and the President’s Malaria Initiative that began in 2005, together with the Millennium Challenge Corporation. The US became extensively involved in Southern Sudan, with diplomatic and assistance efforts “back-officed” out of Nairobi.
While the 9/11 attacks led immediately to the invasion of Afghanistan and created the climate in which the long-simmering confrontation with Saddam Hussein became a “regime change” invasion in March 2003 two months before the passage of PEPFAR, the basics of the US-Kenya relationship of health and humanitarian assistance and security cooperation might not have been that much different had the attacks on the US not succeeded.
According to Congressional Research Service reports, Kenya has over the years typically received security assistance of some US$40 million dollars annually as compared to about US$800 million in health, humanitarian, and economic assistance. Reporting has identified cooperation between Kenyan and US intelligence and paramilitary units in hunting terrorism suspects within Kenya itself but Kenya is not known to have participated in US efforts outside its borders.
A major instance of cooperation that might be imagined to have played out differently could be the Ethiopian invasion of Somalia in late 2006 to displace the Union of Islamic Courts (UIC) and restore the Transitional Federal Government in Mogadishu. While US officials have stated they did not encourage this decision, we did ultimately provide air support and cooperated with Kenya to “seal the border” to fleeing terror suspects. Controversy arose about “renditions”. It might be that in the absence of the 9-11 attacks and the long and expansive “war footing” that followed, the US would have dissuaded the Ethiopian operation or followed a different policy to address al-Qaeda elements in Somalia with the rise of the UIC.
The basics of the US-Kenya relationship of health and humanitarian assistance and security cooperation might not have been that much different had the attacks on the US not succeeded.
As it is, the AMISOM force under the African Union was formed in early 2007 and radical elements from the UIC coalesced as al-Shaabab and announced an affiliation with al-Qaeda, eventually provoking the incursion by Kenya in the fall of 2011 following kidnappings in the Lamu area. Although the US is said to have explicitly discouraged this action by the Kenya Defence Forces, within several months Kenyan forces were allowed to join AMISOM and thus begin receiving Western-funded reimbursements.
Since 2011, Somalia has made significant gains in many respects but a shifting stalemate of sorts exists where al-Shabaab controls much territory outside major towns and sustains financing, while federal governance and security remain a work-in-progress.
Meanwhile, al-Shabaab elements continue to recruit and carry out insurgency and terror attacks in Kenya. The attack on Nairobi’s Westgate Mall that was splashed across Western media, the Mpeketoni attack, the horrific slaughter targeting Christian students at Garissa University, bus attacks and small bombings and the DusitD2 attack in Westlands, show a very wide range of actors, methods, and targets.
How much of this would really be different if al-Qaeda’s 9/11 attacks on the World Trade Center and the Pentagon had been thwarted by intelligence beforehand, or by some other intervention, such as by the passengers of Flight 93 which was brought down in Pennsylvania before it could reach its intended target in Washington? The United States might well be different, and much that has happened in the world might be different. But, leaving aside the necessary impact of the ensuing Iraq war on the election of Barack Obama, and then Trump, the relationship between Kenya and the United States might well be much the same today.
Every Worker Is Essential and Must Be Guaranteed Social Protection, No Matter What
The International Domestic Workers Federation and UNI Global Union demand that all workers of the formal and informal economy are guaranteed social protection.
The COVID-19 pandemic has caused an unprecedented disruption to the global economy and a massive increase in unemployment — exacerbating the ongoing crises of inequality. Despite massive public investment in mostly wealthy countries, worldwide, too many workers are living in extremely fragile conditions and directly feeling the effects of decades of austerity programs aimed at cutting social protections to the bone — and limiting workers rights.
Right now we are at the crossroads. As the world begins spending trillions to lift us out of economic crisis, unions and organizations representing workers in both the formal and informal economy sectors are forming new alliances to ensure the legacy of the pandemic is one of improved working conditions throughout the world.
To illustrate this point, let’s consider caregivers. Caregiving is one of the most common and rapidly growing professions. The COVID-19 pandemic has shown us repeatedly just how essential caregivers are. Caregiving might also be one of the most diverse yet in demand roles in the entire world. While nurses operate for the most part in the formal economy, often in a hospital or institution, care providers in a domestic setting may actually live with their employers and can be called upon 24 hours a day with few avenues for recourse.
For us, as long-time advocates of workers in the formal and informal economies, the time has come to work together to demand universal social protections like a living minimum wage for all and access to healthcare and paid sick leave. We must fight to change the global rules through mandatory human rights due diligence laws and other steps to enable workers to exercise their rights to bargain collectively.
The recent report from the International Labour Organization (ILO) only underscores the urgency. The ILO found that over half of the global population lacks any form of social protection. This is the case even after the unprecedented expansion of social protections that took place following the global outbreak of COVID-19.
In 2020, just 47% of the world population had effective access to at least one social protection benefit, the ILO found. The remaining 53% — up to 4.1 billion people — had no protection at all.
Take this in contrast with a global study from earlier this year from the ITUC and UNI Global Union that found 98% of the world’s workers are not getting the sick pay, wage replacement and social benefits they need to address the challenges of COVID-19.
Active government policies will make the difference. We cannot fully recover or rebuild a better world if we don’t urgently and effectively protect all people, including the 61% of the global workforce who labor in the informal economy. When these workers aren’t recognized for the work that they do, not only are their basic rights breached, but their access to collective bargaining mechanisms and unionising is withheld.
In South Africa, this year, domestic workers achieved an historic victory that deserves examination. Since 2000, the South African Domestic Service and Allied Workers Union has been campaigning for a suite of laws that would extend protections to domestic workers. Eventually, after many years of campaigning, the laws passed, but one of them, which would provide compensation for work-related injury or illness known as COIDA, still excluded domestic workers. After the tragic death of a domestic worker in the employer’s swimming pool, organizers in Pretoria lodged a complaint. It took five years, but the high court declared the exclusion of domestic workers unconstitutional in 2020.
Domestic workers are now covered under South Africa’s COIDA because domestic workers organized and demanded change against all odds. We raise this example because active government policies are critical to protecting workers and raising standards. There are too many attempts at excluding entire groups of workers and while they are usually unconstitutional, it takes years for workers to win.
A strong recovery for domestic workers, street vendors, agricultural workers, and other informal economy workers will be the linchpin for a strong global economic recovery. At the Essential for Recovery Summit, we’ll join workers from around the world to make an urgent call to national governments and international organizations to address our demands for better income and social protections so we can weather this crisis and also build a better future for ourselves.
To allow the sector to expand without formalizing protections, and union representation, threatens to make harsh and often grim working conditions worse. For Myrtle who found her voice organizing during apartheid in South Africa, the goals have always been clear: essential protections for caregivers, the majority of whom are women and often immigrants or racial and ethnic minorities. And as Christy has said: “To put health and safety first — and put the virus to rest — we will need more collective bargaining and unions in the care sector.”
Caregivers and their communities have been particularly impacted, both economically and health-wise by the virus, making the need to uplift their working conditions and wages even more urgent. If we do not address these fundamental inequities, the lasting impacts of the pandemic will be a system worse than what we started with, which already was not supporting and protecting workers. Our key global demand is for all workers of the formal and informal economy to be guaranteed social protection.
This article was first published by Progressive international.
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