The Kenyan Judiciary Strikes “Terror” Again in the Hearts of African Dictators

It is not too early to pass judgment that the Kenyan Judiciary along with the South African judiciary are the leading judicial lights in Africa in terms of exercising judicial autonomy and independence. This article deals with the very important decision by the Kenyan High Court on December 14, 2018 in relation to an opposition politician which demonstrates the significant advances in the calibre and independence of the Kenyan judiciary, a decision which is not conceivable anywhere else in Africa except South Africa.

The decision relates to one lawyer Miguna Miguna who was forcibly deported twice back to Canada by the Kenyan government on account that he was not a Kenyan citizen as he had allegedly lost his citizenship when the constitution was amended in 2010. In early 2018, the Kenyan government disobeyed all types of judicial orders to release Miguna who had been detained. They put him back in the plane twice and deported him.

Miguna started the long distance legal struggle from Canada to overturn government decisions and to make the government pay for the monumental human rights violations inflicted on him. He hired Kenyan lawyers who laboured without pay for their colleague. At long last, on December 14, the decision was handed down: the High Court judge Justice Mwitwa ruled that Miguna never lost his Kenyan citizenship which he had acquired by birth and that the government had committed egregious acts by revoking his passport and had further indulged in torturous violations of his human rights. They must immediately reinstate his passport and allow him back into Kenya.

On top of this, the High Court ruled that the taxpayers must not be saddled with paying the damages and costs awarded to Miguna, the damages and costs must be borne out personally by the individual officers involved: the Attorney General, the Immigration Chief, the relevant Police Inspector General and several other named officers. US$70,000. And costs. This is huge in Africa. This is revolutionary. Such orders are rare. The last recent one in Africa was when the South African High Court ordered that Zuma must pay for the costs of all legal actions that he was involved in while he was President but for crimes he had committed as an individual.

Governments have had the luxury of violating people’s rights and when and if orders were issued against governments to pay, the government’s either didn’t pay or paid because it was taxpayers money and the faceless individuals who violated someone’s rights didn’t feel the impact. If the government didn’t pay, it is difficult to determine whom to actually pursue. Governments acted with impunity. A government is faceless.

In Kenya now, as a result of that decision, Miguna can garnish the wages of the named officials or put caveats on their known properties or impound their vehicles. Justice has come home. There is nothing that modifies human behaviour than when you actually feel the personal impact of a garnishment, a caveat on your property, a freeze on your bank account, a seizure of your car or saloon, the rounding up of your furniture and fridges and other personal effects. At that personal level, you will regret ever having violated someone’s rights and the President can’t interfere. Your drinking buddies won’t be there when this happens to you. The President, the Minister of Justice, the Minister of Immigration and the Minister of Home affairs won’t even answer your calls when justice descends to that personal level. Repeated enough, officers of any description will stop violating people’s rights because they know that they will personally pay damages and costs. This should be imported into Zambia.

This Order by both the Kenyan and South African judiciaries should be emulated by all African judiciaries. This Order is aimed at behaviour modification. It must be celebrated.

Even if the individual officers appeal that decision, they will lose in the Supreme Court because the Supreme Court by nullifying the first Presidential election in 2017, already signalled that rule of law and the vindication of justice have come to stay. It is the same in South Africa. The Constitutional Court is more progressive than the lower courts, so appealing to that court is not going to give one the desired relief unlike in some countries where the Constitutional Courts are the last refuge of the powerful, they can always rely on the Constitutional Court to come to their aid and contort impunity. Not in Kenya or South Africa.

It is ironic that the cure to the previous Kenyan judicial lawlessness before 2010 was inoculated with the help of three Zambian jurists: Professors Muna Ndulo and Chaloka Beyani as well as Justice Chomba. Ndulo advised the Steering Committee that drafted the 2010 Kenyan Constitution; Chaloka Beyani provided the intellectual, ideological and moral leadership that drafted the Constitution while Justice Chomba was part of the vetting and certifying jurist as to which old judges should be lustrated and which old judges must be reappointed under the new 2010 constitution.

Matthew 13:57 reveals that Jesus said something like, “It is in his home town and in his house that the prophet is without honour”. Well, former Chief Justice of Kenya Willy Mutunga stated that in reference to Ndulo, Beyani, Chomba and Zambia because literally these jurists went and served a foreign nation to design an amazing constitution while not being utilised in their home country to design a great constitution which in the government’s own words is “full of lacunae”, unexplained except for political advantage.

The ruling by the Kenyan High Court on December 14, 2018 clearly shows that the gigantic presidential election petition ruling in 2017 was not a false alarm. The 2010 constitution of Kenya removed the presidential power of judicial appointments. The judiciary there is no longer beholden to apron strings of the President. The Kenyan lesson is: discard presidential judicial appointment power.

If this happens, it would mean that no longer would African judiciaries be fear-struck and remain captured and beholden to their appointing authorities and refuse to annul rigged elections, the wont of many African elections.

A former Chief Justice of Uganda once lamented after leaving office that the decision to award a victory to Museveni in a previous disputed election was a mistake. This is circumstantial evidence that the Ugandan judiciary knew they were making a wrong decision. Museveni’s victory in 2016 was disputed and still the judiciary gave the victory to the status quo as has been the case till now.

The Kenyan judiciary had to learn. Rome was not built in one day. The 2013 election in Kenya was disputed and there is huge literature on that election pointing to the deliberate failure of the judiciary to overturn that election due to lack of any precedent at that time in which a declared Victor had been stripped of power by the judiciary. The judiciary is wary of second-guessing a people vote no matter how flawed.

In Zambia, the disputed election of 2001 took years for the judiciary to release the decision which at the time it was handed down would have been moot because the president had almost served his time in office. President Chiluba declared on Dr. Ssali’s Voice of Africa programme that he had rigged the election and deprived Anderson Mazoka of the presidency. We need not rehearse the result of the disputed election of 2016 in Zambia. Who is to blame for the abdication and abortion of the election petition? The jury is still out on whether it is the judiciary or the main Opposition’s lawyers that led to a cliff-hanger result which continues to eat at the Zambian body-politic.

The advantage of the Kenyan election precedent is that the petition was televised. It was obvious listening to the evidence that the election was rigged. The judiciary would have looked really corrupt and insane if they rubber-stamped that election result. They made up for the ridiculous decision of 2013 in 2017 if one analyses the literature on that election petition decision.

In Zambia neither were the motions televised nor the evidence of rigging publicized. Publicity is a disinfectant. The election could have been rigged but we have no publicized evidence. The election could have been flawless but in the result that the petition was never publicized as it was in Kenya through the televised judicial process, we may never know how fair and flawless the 2016 elections were.

The judicial election precedent established by Kenya now is humongous. When Kenyatta told the opposition to go to court if they were dissatisfied with the election result, he talked like a man who knew his judiciary. Apparently he does not know his judiciary. Former Chief Justice of Kenya Willy Mutunga was in Lusaka in August 2017 and gave a talk centred on how the Kenyan judiciary is embarking on creating a new African Jurisprudence. There is clearly new jurisprudence out of Kenya which we must celebrate. Kenyatta won the next election based on demographics, but the last word for us is that, the judiciary had spoken. The precedent is unprecedented. With the deportation case of Miguna and the judicial awarding of damages of $70,000 US to be paid personally by the violators of Miguna’s rights, and the accompanying costs, justice had hit right at home in Kenya. The same will happen in due course in Zambia.

Dr. Munyonzwe Hamalengwa teaches law and is the author of a forthcoming book, Commentaries on the Laws of Zambia.

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