A few days before Kenya went to the polls in March last year, Chief Justice Willy Mutunga convened a press conference to announce that he was ready to die for Kenya.
Sounding like Nelson Mandela at the end of the Rivonia trial, the Chief Justice stated that “I have given most of my life to a better Kenya and if taking it is what will be required to consolidate and secure our democratic gains in this election, or even thereafter, that is a price I am not afraid to pay.”
He announced that he had received written threats from a previously unheard of gang, the Mungiki Veterans Group, warning against an “adversarial ruling on the presidential and deputy presidential candidacy of Uhuru Kenyatta and William Ruto”.
While the Chief Justice’s statement divided public opinion, it set the stage for the presidential election petitions that were eventually filed in the Supreme Court in the wake of results that announced Kenyatta and Ruto as the winners in the elections.
In the end, the unanimous decision of the Supreme Court found that the elections had been held according to the law and that Kenyatta was, therefore, validly elected as president.
When finally the Court provided the reasons for this major finding, these were savaged as unconvincing and underwhelming. The decision by the court not to read out judgement in the open, as is required by law and the usual practice, gave the impression that the court was embarrassed by its own judgement which it was not prepared to publicly stand up for.
What had started as a massive show of accountability by the Supreme Court, complete with unprecedented arrangements to give the largest amount of broadcast to the proceedings, collapsed in opacity. The Supreme Court had managed to badly distort and misrepresent the position of the Kenyan law on elections. The effects will live with us for a long time.
The decision of the Supreme Court on the presidential petition has been the defining issue around the judiciary in the last one year. It shocked assumptions that had been made that there was now sufficient moral courage to withstand political pressure, of the kind that the Chief Justice implied when he called the press conference to refute the Mungiki Veterans Group.
In the months that have followed the judgement, groups working on judicial reforms have tried to understand what actually happened and which led to this decision. Because the judgement is so poorly written, and carries so many factual and legal errors, there is no basis for concluding that it was the result of an honest application of the law, as the judges saw it. In the circumstances, there has been the temptation to speculate that factors outside of the facts and the law may have been at play and may explain the judgement.
The behaviour of the Supreme Court, which still refuses to discuss how and where the judgement was written, has added to the speculation surrounding the judgement.
Dr Mutunga came to office in 2011 with a solid reputation of support for democratic reforms in the country. Much of that reputation has come under question in the wake of this judgement, and the Chief Justice has complained that he has lost the support of his political corner.
The decline of Justice Mutunga, and that of the judiciary, was furthered in the saga surrounding disciplinary proceedings against its former Chief Registrar, Gladys Shollei, whose removal proceedings exposed a major gravy train in the Judicial Service Commission,whose members have pocketed millions of shillings in taxpayers’money as allowances.
A further dimension of the fallout from the Shollei saga is the fight between the judiciary on the one hand, and the legislature and the executive, onthe other. At the moment, the judiciary holds the upper hand, having stopped removal proceedings against members of the JSC, whom it returned to office.
However, the image of a stalemate in the relationship between these arms was created when the Speakers of the two chambers of Parliament, the National Assembly and the Senate, insisted that their houses will not obey “stupid” court orders when these are made against them. They have gone on to demonstrate their seriousness by disregarding orders by the High Court stopping the removal of Embu governor, Nyaga Wambora.
When he first came to office, Dr Mutunga had the stature that would have compelled the legislature to obey court orders.After the Supreme Court judgement, politicians now know that they will always have the last laugh in any contest with the courts. Through the presidential petition, the Supreme Court cheaply expended the judiciary’s moral authority, and is now crying that politicians have ignored court orders. The Supreme Court made the bed. The rest of the judiciary must now lie on it.
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