Kenya’s Election Logjam: Judicial Independence, Security and Intimidation

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The Chief Justice of Kenya David Maraga has accused the country’s Police of not providing security for the judiciary in the face of recent election tension in the country. The accusation was made, following the decision of the Supreme court of Kenya to nullify the August held the Presidential election, which the court declared null and void due to alleged charges “illegalities and irregularities” against the Independent Electoral and Boundaries Commission (IEBC). The court ordered a fresh re-election within 60 days.

In a strong worded statement, the courageous judge, who has made news recently around the world when he cancelled the presidential election – the first time in Africa a court nullified a presidential election –   said that the judiciary is ready to pay the “ultimate price” to protect the country’s constitution in view of the alleged attacks and harassment of its members after the supreme court verdict. The Chief justice specifically reprimanded the police boss Joseph Boinnet, for allegedly refusing to provide adequate security to judiciary staff.

“He repeatedly ignored calls to act, exposing judicial officers, property, and litigants in danger.” Chief Justice David Maraga accused the police boss.

In a defiant and indeed independent tone, the Chief Justice chided the executive for alleged attempted control over the judiciary and warned that the independence of the judiciary is the sine qua non for the democracy and rule of law.

“If leaders are tired of having a strong and independent judiciary, they should call a referendum and abolish it all together.” The Chief Justice warned.

The unexpected decision by the supreme court to nullify the 8 August Presidential election, which was won by President Uhuru Kenyatta has received both wide praises and criticisms in different quarters. Many in the opposition camp and others elsewhere around the world commended the courage and independence of the supreme court. Yet supporters of President Kenyatta see the verdict as “anti-democratic,” arguing that the decision of the court is an insult on the mandate of the people who voted for the President.

Following the court’s order for a re-run of the presidential votes, the election commission has fixed the re-election day on 17 October. However, Raila Odinga, Kenya’s opposition leader, who went to court to challenge the election results has rejected the 17 October date, arguing that the conditions and problems, which hampered the last presidential election are still not corrected. Reacting to the court verdict, president Kenyatta, made it clear that he did not agree with the verdict, although he pleaded to accept it. However, the president vowed to “fix” the court if re-elected. On the other hand, the opposition leader Raila Odinga intimated he would boycott the upcoming presidential election re-run “without legal and constitutional guarantees” that the election would be conducted free and fair. With these challenges and indeed impediments, Kenya has been put into political tension.

Worse still, a petition filed by Nyeri Town MP Ngunjiri Wambugu yesterday, proposing that the Chief Justice David Maraga be kicked out of the office has not only created more political anxiety, it equally polarised the ruling party. According to Wambugu, the Chief Justice has engaged in an unconstitutional act “through judicial intervention, designed to controvert the authority” of the people.

It does not help matters that the petition came after a meeting of President Kenyatta at the Presidential House with a Abagusii delegation, which makes some believe that the petition was an invisible hand of the President, aimed at “fixing” the Chief Justice. Although both the President and many members of his Jubilee   Party strongly dissociated themselves from such an allegation, with some members of the ruling party condemning the petition, the opposition has, on the other hand, used it to support its allegation that the ruling party wants to manipulate the election through intimidation and fraud.

Definitely, a lot is presently at stake in Kenya. While some praise the courageous act and independence of the judiciary in the country in the wake of the election nullification, others label the act a rape of democracy. That is not all. The independence and the legal limitation of the three arms of the government are serious being tested as well. With the recent rhetoric and alleged intimidation from both camps, the beloved Kenya cannot afford to go back to the ugly scenery of the past post-election violence, which consumed thousands of innocent lives.

Anyone who really loves Kenya must do all that is necessary to avoid this unfortunate scene. No one’s ambition is worth more than the peace, unity, and progress of Kenya! Anyone who says or does otherwise is indeed an enemy of the beautiful country, Kenya!