We say the words: “Je ne suis pas #CharlieHebdo” (“I am not #CharlieHebdo“) with due respect to all those affected by the terrorist attack at the Charlie Hebdo offices yesterday in the French capital, Paris. As Kenyans, we are all too familiar with the pain, loss and damage caused by acts of terror. So, we empathise with the French people and we say to them: “Poleni sana”. However, as #CharlieHebdo continues to flood timelines, media outlets and newspapers, we must decolonise our minds and remember not to get sucked into the Western Media frenzy. As Kenyans and Africans at large, we have very complex and pressing problems of our own that are not so fortunate as to receive the worldwide coverage currently being given to #CharlieHebdo.
“The man you see before you is the mortician. The patient died on the operating table a long time ago.” – The Hon. Attorney General, Prof. Githu Muigai, SC, on Anglo-Leasing cases.
Earlier this month, the Law Society of Kenya (LSK) went to the High Court of Kenya in the case of Law Society of Kenya v Cabinet Secretary Treasury & The Attorney General  eKLR seeking conservatory orders restraining the Government of Kenya from making payments to Universal Satspace (North America) LLC pending hearing and determination of the LSK’s case against the Executive Branch. Many will recall that Universal Satspace is one of the entities involved in the now infamous Anglo Leasing Contracts under investigation by the Ethics and Anti-Corruption Commission (EACC). However, Majanja, J sitting in the High Court declined to grant the interim orders sought by LSK. In this ruling, the court defers to the Legislative Branch’s oversight authority over national revenue and expenditure.
Folks, there you have it: separation of powers at work!
This past week, the Executive Branch defended its decision to pay KES 1.4 Billion in one single payment to one single bank account to settle debts with respect to “security contracts” with two entities, Universal Satspace and First Mercantile Securities Corporation. The President, the Treasury and the AG have maintained that paying the colossal sum all at once was the only way the country could secure an urgently needed Euro bond or otherwise risk cutting back on government expenditure, service delivery and programmes for Kenyans.
In between time, LSK decided that it would take action against its members: P.105/1421/85, P.105/2913/95 and P.105/1434/85, also known as Prof. Githu Muigai, SC., Mr. Njee Muturi, the Solictor General and Ms. Muthoni Kimani, the Deputy Senior Solicitor General respectively. According to LSK, there are reasonable grounds to believe that the Muigai, Muturi and Kimani have acted in an unconstitutional, illegal and unprofessional manner and have conspired with the Executive Branch in dealing with the Anglo Leasing type contracts and in particular in the case between Universal Satspace and the Government of Kenya.
The following documents have been made public by LSK in support its case against the Office of the Attorney General:-
1. In a letter dated August 11, 2008, the Deputy Solicitor General Muthoni Kimani advised the Government’s Advocates’ not to advance the defence of bribery and corruption. LSK argues that Kimani did this despite reports by Kenya Anti-Corruption Commission (KACC), the Cabinet, Pricewaterhouse Coopers, Public Accounts Committee and the Auditor General to the effect that the contractual documents in the transaction were procured through corrupt practices and that Universal Satspace and First Mercantile had no permanent address. A copy of the letter is available here.
2. In further support of the point above, LSK has made public the request for Mutual Legal Assistance by KACC to the Swiss Federal Office of Justice and Police. In the request, KACC names 20 persons and companies under investigation. The request appears to conclude that the contracts were signed by corrupt Kenyan officials named in return for financial or other inducements. Earlier this year, the EACC confirmed in a letter to the Treasury and the Attorney General that it was still investigating the Anglo Leasing contracts. A copy of the request is available here. A copy of the EACC letter is available here.
3. LSK accuses the Attorney General of entering into an illegal consent in a case filed in Switzerland by First Mercantile Security Corporation. A copy of the judgment in the court of first instance in Geneva is available here.
4. LSK alleges that the government directed the Attorney General (vide Cabinet memo dated 30th September 2010) to engage foreign competent advocates with complex commercial litigation experience to defend the Anglo Leasing type contracts. In this connnection, LSK argues that the Attorney General acted contrary to these directions by frustrating Government lawyers. LSK further argues that the Attorney General appears to have withdrawn instructions in December 2013 from the foreign advocates and that his office unprocedurally took over the conduct of the case. In this connection, the Solicitor General Njee Muturi represented the country before a London Court in December 2013 without a licence to practice law in England and Wales. Therefore LSK argues that the Kenya Government effectively did not have legal representation in the suit and the proceedings are a nullity. A copy of letters sent in vain from government lawyers Edwin Coe, LLP is available here. A copy of the proceedings in the London court are available here.
5. LSK accuses the Office of the Attorney General of scaring the Government into make the Anglo Leasing payments by sending a letter informing Treasury of a threat of attachment of the Kenyan Embassy in Switzerland and the intended Sovereign Bond. A copy of this letter is available here.
6. LSK contends that during the meetings held on 28th March and 1st April 2014, the Office of Attorney General failed to advise the Government which led to the latter’s agreement to settle claims by First Mercantile Securities Corporation and Universal Satspace in one single payment by the end of the Month of April 2014. A copy of the Minutes of the meetings is available here. A copy of the Letters of Agreement between the Government of Kenya (signed by the Attorney General) and First Mercantile Securities Corporation and Universal Satspace is available here.
7. LSK accuses the Attorney General of giving a misleading legal opinion that the Government had no other legal option but to pay the Anglo Leasing contracts while an appeal option was and is still available. LSK argues that this failure by the Attorney General to pursue an available appeal was a dereliction of the AG’s constitutional mandate under Article 156 to protect and uphold the rule of law and defend public interest. A copy of the legal opinion is available here.
8. LSK contends that, on the strength of the Attorney General’s misleading opinion, the National Security Council directed the Cabinet Secretary for the National Treasury, the Cabinet Secretary for Foreign Affairs, the Cabinet Secretary for Defence and the Attorney General to devise a communication strategy for the undelivered Anglo Leasing contracts and Cost/Benefit Analysis of Anglo Leasing payments. These directions were communicated through a letter from the Secretary to the Cabinet. A copy of the letter is available here.
9. LSK further contends that, on the strength of the Attorney General’s misleading opinion, the Treasury wrote to the Director of Budget requesting the latter to grant credit to make the Anglo Leasing payments. In her response, the Director of Budget accepted the advice of the Attorney General but rightly requested Treasury to furnish proof of parliamentary approval to release funds from the Consolidated Fund. A copy of the letter from the Treasury is available here. A copy of the response from the Director of Budget is available here.
In view of the above, LSK has publicly stated that it intends to take the following action against the Attorney General, the Solicitor General and Senior Deputy Solicitor General for professional misconduct:-
(a) Ask them to Show Cause why a Certificate of Dishonour by LSK should not be issued to them.
(b) File suit to declare them unsuitable to hold office and surcharge them for any monies paid in the case.
(c) Strike off the Attorney General from the Roll of Senior Counsel.
(d) Ask the Hon Attorney General to vacate office by resigning pending further investigation in the matter.
In sum, the ball lies squarely in the court of the Attorney General’s Office to rebut the weighty allegations made against them by LSK. In a previous post here, we discussed the important role to be played by the then Attorney General nominee, Prof. Githu Muigai.
In the meantime, the Law Society remains one of the most powerful professional bodies in Kenya with its members serving as Heads of two Branches of Government, namely the Judiciary and the Legislature. In an earlier post here, we highlighted how LSK ‘disciplined’ the Speaker of National Assembly for acting contrary to the law in the MPs’ salaries case. Now it appears that LSK has turned its attention to the Executive Branch and in particular, its legal advisor, the Attorney General.
“Parliamentarians are expected to operate within the letter and the spirit of the Constitution. Parliament, like all other state organs, is not above the law. Members of the National Assembly, like all other state officers, and the National Assembly, like all other state organs are compelled by the Constitution to adhere to the national values and principles of governance found in Article 10 of the Constitution. We therefore agree with the petitioners that the resolution by the National Assembly to nullify the Gazette Notices published by the SRC was unconstitutional.” – Judgment in Petition No. 227 of 2013 at paragraph 82.
The above judgment by a three-judge bench sitting at the High Court at Nairobi is significant for two distinct yet connected reasons: firstly, it is a big win for the doctrine of constitutional supremacy against the doctrine of parliamentary sovereignty and secondly, it restores much-needed public trust in the ability of the Judiciary to dispense justice. A copy of this landmark judgment is available here.
In the recent past, there have been several spirited public campaigns against members of parliament (MPs) whom many registered voters feel have gone rogue by putting their narrow private interests above those of the electorate that put them in public office. The climax of this perceived parliamentary impunity came in May 2013 when the National Assembly (NA) wrote to the Salaries and Remunerations Commission (SRC) purporting to nullify the remuneration of various categories of state officers which the SRC had published in the Kenya Gazette.
“We also speak knowing that it is our duty to ask ourselves what is the use of having a Constitution if it is not honoured and respected by the people. The people will lose faith in the Constitution if it fails to give effective protection to their fundamental rights. The people know and believe that destroy the rule of law and you destroy justice, thereby also destroying the society. Justice of any other kind would be as shocking as the crime itself. The ideals of justice keep people buoyant. The courts of justice must reflect the opinion of the people.” – Chief Justice Madan in the case of Stanley Munga Githunguri vs Attorney-General (1985).
A functioning constitutional democracy requires a judiciary that is both impartial and independent. A judiciary that accepts it as its duty to give full effect not only to the letter of the Constitution guaranteeing fundamental rights and freedoms, but also its spirit.
For the letter killeth but the spirit giveth life.
In reality, judicial power is potentially no more susceptible to abuse or misuse than legislative or executive power but the difference is this: the abuse or misuse of legislative or executive power can be policed by an independent judiciary but there is no effective constitutional mechanism to police the abuse or misuse of judicial power. Where there is no constitutional referee to review judicial wrongs, the judiciary’s responsibility becomes all the more onerous upon of its officers. It is therefore crucial for judges to remain conscientiously alive to the truth that with this potentially awesome breath of judicial power comes great judicial responsibility.
Most of us have read the recent judgment of the Supreme Court of Kenya (available here) in the matter of several Presidential Election Petitions challenging the Independent Electoral and Boundaries Commission (IEBC)’s declaration of Mr. Uhuru Kenyatta as the duly elected President of the Republic of Kenya. In this judgment, the highest court in the land purports to give reasons in detail why it unanimously dismissed the presidential petitions before it, effectively paving the way for the assumption into office of Mr. Kenyatta as the fourth Commander-in-Chief of Kenya.
At the heart of this 113-paged judgment on the “political-cum-constitutional” electoral process is a clear dichotomy between matters the Supreme Court Justices considered to be “constitutional-legal” and those they considered to be “political”, the latter being perceived as non-justiciable and beyond the competence of the court. For many, paragraph 203 of the judgment is crucial as it problematises the Judiciary’s role to give full effect to both the letter and spirit of the Constitution:
“…we express the opinion that, in the special circumstances of this case, an insightful judicial approach is essential. There may be an unlimited number of ways in which such an approach is guide the Court. But the fundamental one, in our opinion, is fidelity to the terms of the Constitution, and of such other law as objectively reflects the intent and purpose of the Constitution.” (Emphasis mine)
It is indeed tragic that the Supreme Court does not elaborate in any measure of detail as to what this insightful approach entails or whether their understanding of fidelity relates only to the black letter of the law or whether it extends in due measure to the spirit of the law.
Implicit in the court’s judgment is the acceptance that in the case of a Presidential election, the court should be guided by an approach of judicial restraint as the question before it is more political than constitutional-legal. Therefore the court was persuaded, with questionable arguments supported by equally questionable Commonwealth precedents, that the standard of proof in Presidential Election Petitions should be artificially higher than it ought to be so as to curb judicial intervention in matters where the electorate are deemed to have exercised their political choice by casting their vote.
It is ironic that in arriving at this troubling decision in favour of judicial minimalism, the Court was guided by the celebrated South African case of Minister of Health v Treatment Action Campaign (TAC) (2002) 5 SA 721 (CC). However the Court failed to distinguish this case from the case before it and crucially point out that the TAC case clearly illustrates that judicial activism in constitutional adjudication is viable and part of modern day constitutional jurisprudence. The passage lifted from the TAC case and referred to by the Court at paragraph 223 of the judgment was not the holding of the South African Constitutional Court in that case! The passage cited at paragraph 223 was the contention of the South African government’s counsel in an attempt to avoid being held accountable for its HIV/AIDS policies at the time. The South African apex court, however, held that no system of separation of powers is absolute, since “there are certain matters that are pre-eminently within the domain of one or other of the arms of government”. The South African court therefore found that it has powers to evaluate the reasonableness of measures taken by government, where they are challenged for being unconstitutional. Thus where appropriate, the theory of separation of powers would not preclude that Court from making orders that have policy implications, and such a ruling does not result in a breach of the theory of separation of powers.
The extent of judicial restraint exercised by the Supreme Court in its judgment is at the core of the collective disappointment shared by many Kenyans. In a well reasoned and must-read dissection of the judgment by seasoned constitutional lawyer Wachira Maina (available here), he opines:
“The unhappy feeling one comes away from this judgment with is just how stringent the standard that the Court imposes on petitioners is. And, conversely, save for the rather tame recommendation that IEBC be investigated and maybe prosecuted, just how so very lenient the standard by which IEBC’s performance has been judged is.”
In this vein, we should all take heed of the wise words of former South African Judge Albie Sachs who is currently a member of Kenya’s Vetting of Judges and Magistrates Board. In his eloquent judgment in the case of Prince vs President of the Cape Law Society and Others, Sachs reflected that: “Undue judicial adventurism can be as damaging as excessive judicial timidity.”
What Kenyans needed to see come out clearly in this judgment of Supreme Court was a balance between these two approaches of activism and restraint. In a country of vast inequalities and historical injustices such as ours, judges cannot afford to be textual, formalistic and mechanical in their interpretation of the Constitution. A purposive, contextual and liberal approach to constitutional adjudication is crucial as it provides for protection of fundamental rights and freedoms as against claims of state security and national stability.
In light of this judgment one wonders whether this judiciary will survive the potential onslaught led by rogue parliamentarians, kleptocratic cabinet ministers, and others who may have little regard for the Judiciary. After all, the Judiciary has no army or police force and neither does it have the power of the Purse. Judges are not elected and therefore do not have the natural support that leaders of the majority party might have by mere virtue of being leaders of the party.
Therefore, the Judiciary relies heavily on the confidence bestowed upon it by the public for its independence and impartiality. In an earlier post, this blogger condemned the Executive Branch of Government in strong terms for interfering with the Judiciary through harassment and intimidation of its members including the Chief Justice. Indeed a functional constitutional democracy is one where the public is vigilantly alive to the important role played by the judiciary in protecting the rights and interests of ordinary citizens – including those that form the electorate.
However, the people of Kenya must always hold the Judiciary accountable and responsible for any and all exercise of judicial power. In the present case, it is our solemn duty and responsibility to criticise and lay blame squarely on each of the Supreme Court Justices that have individually and collectively misused the sovereign power donated to them by people of Kenya as enshrined in the Constitution.
If the loud silence that currently reverberates from many quarters of our country is anything to go by, the courts of this land must double their efforts to (re)build public confidence in the Judiciary.
“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.” – Chief Justice Dr. Willy Mutunga, 20th February 2013.
Fellow Kenyans, make no mistake about it: “Eternal vigilance is the price of liberty”.
Yesterday the Chief Justice (CJ) made a public statement (available in full here) where he highlighted two seemingly isolated events that point to a calculated and sinister plot by those seeking to reverse Kenya’s constitutional gains, undermine institutional independence within the Government, and subvert the Rule of Law. Indeed, the CJ’s “poison-pen” letter and “small hiccup” at the Jomo Kenyatta International Airport (JKIA) must be cause for renewed “resolve of each and every Kenyan to protect our Constitution” because, after all, an injustice to one is an injustice to all.
Kenya is at a precarious moment in its history and with Parliament out of the picture, only two arms of government remain: the Judiciary and the Executive. As far as the “small hiccup” goes, the average observer can clearly see that this is nothing more than the Executive taking advantage of the fact that Parliament is no longer around to make noise and call into question the Executive’s move to blatantly undermine the authority and independence of another arm of government namely, the Judiciary. We must take comfort in the CJ’s statement as it exposes the Executive’s feeble attempt to ‘bend the ear, mind and resolve’ of the Judiciary through its head, the CJ.
The statement affirms that despite this intimidation, the Judiciary will uphold, protect and defend the Constitution and the Rule of Law. This incident at JKIA also illustrates the systematic disrespect of the Judiciary as an arm of government, where in the recent past we have seen the Executive failing to obey court orders and decisions. After all, one wonders, in the hierarchy of power and authority under the law, who is PS Francis Kimemia to bar the Head of the Judiciary from traveling, let alone the lone Immigration Officer carrying out the Executive’s bidding? Although it may not be in dispute that this Immigration Officer must “know people”, one is relieved that the CJ preferred to negotiate his way out of the situation rather than cause a scene at JKIA that may have ended up being politicised to remove him the Bench’s apex court.
On a personal note, this incident at JKIA should remind us all that our right to freedom of movement is enshrined in the Bill of Rights of the Constitution and specifically guaranteed under Article 39. Any limitation or transgression of this right or any other must not be treated lightly.
It is therefore fair, just and proper that the Executive through the very PS Kimemia do issue an unconditional and unequivocal public apology for abusing the powers that We, the People of Kenya have donated to the Executive under Article 1 of the Constitution. This public apology must also be coupled with the Executive’s deepest regrets conveyed to the Judiciary and its officers whom it needlessly harassed.
Moving to the matter of “the poison-pen letter” alleged to be authored by the outlawed Mungiki sect, one thing is clear: anyone thinking they can scare or intimidate the CJ is terribly mistaken. In another life, the CJ, Dr. Willy Mutunga had been a legal academic and a prominent human rights activist in Kenya since the 1970s. Indeed one wonders whether a man who has been hardened by mistreatment, arrest and detention under former President Moi’s authoritarian regime, would now feel the least bit intimidated or cowed by death threats from so-called Mungiki. Be it as it may, the issues of security during and after elections must not got unaddressed and the State is squarely responsible for guaranteeing that law and order prevails.
Finally, there are those who argue that this public disclosure by the CJ ought not have happened and instead the two events handled in camera between the relevant state agencies concerned. To many this argument may be ably challenged with reference to Article 35 on the right of access to information under the Constitution. In particular, attention may be drawn to Article 35(3), which requires that the State (which includes the Judiciary) must publish and publicise any important information affecting the nation. In a previous post, this blogger has discussed the import of Article 35 and argued that whistle-blowing and/or public disclosures must be made with due consideration for the hierarchy and chain of command within the public institution in question. In essence, public disclosures of information held by the State must be sanctioned by the highest authority concerned and the manner of disclosure must be clear and concise. In this present case, one must bear in mind that the CJ is acting not merely an individual but as the Head of a branch of government. Thus, to whom is the CJ supposed to make disclosure other than the People in whom sovereignty is vested?
What we all must learn from the CJ’s statement is that silence is not always the right option and that truly wise and brave Kenyans will remain vigilant and will constantly ask themselves if their silence is contributing to injustice or not.
“…Having celebrated the repeal of Kenya’s older Constitution that legitimated discrimination in the areas of adoption, marriage, divorce, burial, devolution of property on death and personal law, I expected that the new constitutional dispensation would make the quest for equality and non-discrimination on the grounds of sex easier. However, in the short period that the Constitution has been in operation, the fallacies of the constitutionally entrenched principle of gender equality have become apparent in the areas of political representation and appointments to offices.” – Prof. Patricia Kameri Mbote, SC., 24th January 2013.
Kenya’s new constitutional dispensation is a radical departure from the old order and therefore it must be expected that there will be resistance to admission of new entrants by those so-called gate-keepers currently enjoying rights. My argument back then and now is that the task of implementation of the Constitution, by and large, remains in the hands of certain bureaucrats bent on exploiting society’s inherent inequalities and exclusions for their own selfish gains. Therefore, even where the supreme law steps in to try and redress these inherent incongruences, its success is wholly dependent on implementation. Herein lies, what Prof. Kameri Mbote terms, a “discernible chiasmus in the practical application of equality and non-discrimination which results in discrimination”.
In previous posts here and here, I have tried to shed light on the centrality and importance of the Equality and Non-Discrimination provision in the Constitution. In this connection, I concur fully with those that lay sharp emphasis on the role of the judiciary as the guardian of constitutional norms and values as well as being the primary institution charged to breathe life into the Constitution through interpretation.
Sitting in a packed auditorium listening to Prof. Kameri-Mbote giving her Inaugural Lecture, I couldn’t help but wonder whether our judiciary so far has been performing its crucial role as vanguard of equality and non-discrimination which includes demanding fidelity to the Constitution by the executive, the legislature and the public.