The Judiciary.
There is near consensus among observers that the Constitution of Kenya 2010 was intended to be a transformative, even revolutionary, governance document for Kenya. This transformation was intended to take the form of new institutions.
Offices, separation and dispersal of power and authority and empowering of the citizens as sovereigns, not merely as subjects. A decade and a half after its promulgation, the extent of this transformation may be worthy of a probe.
The Judiciary is one branch that the Constitution directly made charge of reform along all these strands of change. It can be said that it is the branch of government that was most targeted for probably the harshest and most urgent change. How so?
While the executive and legislature had to await an election for the structural changes in them to commence, the reform of the Judiciary started almost immediately within the time-frame for the completion of the constitutional reform.
While Parliament completed its whole term until the next elections in 2013 and the presidential elections were held later, the Chief Justice had to leave office before his retirement within 6 months of the date of promulgation of the Constitution.
The Judges and Magistrates then serving in the judiciary had to undergo a vetting as to their suitability to continue serving in their offices, and not least, a new court was established at the apex of the Judiciary in the form of the Supreme Court and whose Judges were largely persons who had not served within the judiciary as it existed in the old constitutional order. The overhaul was intended to be complete, direct and quick.
Unfair treatment
While many may see this as a very unfair treatment of the Judiciary relative to the other branches of government, the framers of this method may take pride that it appears to have worked. This rather rough treatment imbued the Judiciary with the true meaning of that catharsis: That the promulgation of the constitution was intended to herald a new Kenya, from governance structures changing the governors to public servants, from authorities and Forces to service and the reverse for the citizen, from subject to the sovereign.
The Judiciary has demonstrated a unique understanding of this change in several respects, but not least in the realm of its operations. It was the judiciary that first permitted the interviews of the candidates to the office of the Chief Justice to be conducted in public and even to be televised, against some disdain.
Soon after this promulgation, a Court issued a warrant for the arrest of a head of state charged who had defied an order to attend trial at The Hague. The force of the new constitution was not lost on Kenya by the fact that the subject of that warrant of Arrest, President Omar Bashir of Sudan, had attended the event at which the new Constitution was promulgated.
The message was clear that, despite vacillation with international treaties by the other arms of Government, the Courts would help Kenya live up to its obligations under international law.
It is within the realm of Human Rights that the Judiciary has placed Kenya within the bandwidth anticipated by the Constitution against all odds, and even sometimes in defiance of the other arms of government.
An example here is that the right to demonstrate and protest against public authorities now sits at the centre of an inalienable right by the courts, and the attempts by the executive and the legislature to truncate them have been declared unconstitutional. Thus, today, the right of citizens to peacefully protest while unarmed forms a cornerstone of civic engagement by the citizen despite unease by the executive, the police, no less.
The Judiciary has also distinguished itself by upholding the right of the citizen as a part of the spearhead of governance in this country, to the detriment of the overarching Executive and Parliament. Court decisions have established the right to public participation and, in so doing, emboldened the citizens’ input as non-negotiable in undertaking various initiatives by other branches of government.
By doing this, the courts have brought to life the essence of public participation as a right for the citizens and an obligation for public servants to reckon with Kenyans' views and perspectives in the development plans, policies and even legislation.
The legislature and the executive have been called offside the constitutional requirement whenever they tried to exercise power and authority with spite of the citizens’ input. Thanks to the courts, it is by recognition of public participation that the Citizen now has a voice in determining the direction of the country, albeit incrementally.
It is again the Judiciary that the Constitution provided with the prefecture to implement the Constitution on behalf of the citizen. The schedule of implementation permitted the Chief Justice to make an order and submit to the president an order for dissolution of parliament in the event that the implementation of the constitution was otherwise clogged by political bottlenecks.
This is just what a Chief Justice did when parliament failed to implement, among others, a law requiring gender equality within elective public offices. Once again, it is the other branches of government that blinked when then president decided not to act on that recommendation.
The Judiciary has not only had to sort out the legislature and executive branches back to line singularly. It rose to the occasion and defended the constitution itself from attempts at mutilation by a pincer movement of the parliament and the Executive to amend the constitution for partisan political purposes through the Building Bridges Initiative (BBI). This attempt was stopped in its tracks by the Judiciary declaring the process and substance of the proposed amendments as contrary to the Constitution.
It might be tempting to ask why the Judiciary, despite all the odds it has faced, some of which may even be self-inflicted, has stood out as the unchallenged vanguard of the constitution. The answer may be because of all the departments of government; it is the Judiciary, which is a proper professional unit. The legislature and the executive branches are composed of the profession of politics.
Clarity of purpose
But a second reason for the clarity of purpose on the need to protect and uphold constitutionalism within the republic is that which we started with. That is, the Judiciary was the one whose reform and reconstruction were in lock step with the Constitution. The result of this treatment has therefore seen itself as a product of the constitution and appreciated better, I think, the need to keep the values and principles of the constitution alive within the Nation.
For these reasons, although the constitutional implementation process was bedevilled and remains difficult, the work done within and by the Judiciary has provided the momentum for the transformation that was desired when the constitution was promulgated on August 27, 2010.
The reconstructed Judiciary is warts and all, the phoenix that arose from the ashes to give reality to the Constitution, not to have been just a pipe dream.
