By Munyonzwe Hamalengwa
It is quite unpalatable that the world praised President Uhuru Kenyatta for accepting the decision of the court nullifying the Presidential Election while disagreeing with it but not condemning his serious follow-up attack on the judiciary. The attack nullified his so-called acceptance of the judicial ruling. The world by not condemning his not veiled but open and overt attack is encouraging impunity on judicial attacks by powers-that-be that may induce the judiciary to retreat into its usual cocoon.
Shortly after Kenyatta had sobered up from the shock of the nullification of the election result, he launched into a sour-loser mold, typical of entitled world dictators by calling the judiciary “corrupt” and demanding to know who elected them and then threatening to “fix” the judiciary after a victory on the rerun! The world never condemned this attack on the independence of the judiciary.
Kenyatta knows very well that in the separation of powers schema under the rule of law, the judiciary is not elected but appointed through the Judicial Service Commission. The judiciary derives its legitimacy not from elections like the Presidency or the Legislature, but threw the selection process and attributes of independence, impartiality, security of tenure, judicial ethics and other accoutrements. He is trying to undermine the judiciary by taking refugee in the underhanded cocoons of a terrified presidential kleptocracy, worn-out arguments of Yesteryears.
It took a lot of effort and constitutional reforms to enable the Kenyan judiciary to be able to make the decision that it made on September 1st, 2017. The President was stripped of making patronage judicial appointments. He is now just handed the name of the person he has to appoint ceremonially by the independent Judicial Service Commission, a body that was also reformed and is now independent. So what is he going to fix? But his threats were direct. He stated that the judiciary, principally the Chief Justice Maraga must not assume that Kenyatta fears the judiciary because he doesn’t. “We don’t fear you”, he harangued. Is he threatening physical harm here? Imagine a weak-kneed judge hearing this message from the President of his or her country? This is intimidation of the highest order. Imagine also a deranged tribalist hearing this message from his or her President! He or she will think it is open season on the judiciary. Kenya has a lot of unsolved murders of politicians, lawyers, election officials and had endured massive election violence. The threat on the judiciary and the implications of physical harm is thus not farfetched. Kenyatta himself had been indicted by the International Criminal Court for perpetrating crimes against humanity in the election of 2007 and only escaping conviction because among others, his regime committed obstruction of justice by threatening witnesses. So Kenyatta is capable of living up to the threats that he is issuing. He has done it before. He had been charged before.
Thus the international community should have condemned Kenyatta’s threats with the most voluble censure, also to discourage other Dictators from emulating Kenyatta’s threats on the judiciary. The Kenyan Judicial precedent in nullifying the rigged and flawed election must be protected. The constitutional and judicial reforms that led to the possibility of that result must be emulated throughout Africa.
The judiciary doesn’t belong to the politicians. It belongs to the people. It is to serve the people.
Dr. Munyonzwe Hamalengwa teaches Criminal Law, Jurisprudence, Intellectual Property Law, Medical-Legal Law and Graduate Research Methodologies at Zambian Open University in Lusaka. Email: Munyonzwe.