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Kenya’s Courts Throw Down the Gauntlet

December 15, 2011

by Thomas R. Lansner*

Omar al-Bashir

Sudan President Omar al-Bashir 

At the end of November, a Kenyan High Court judge ruled that Sudanese president Omar al-Bashir should be arrested “should he ever set foot in Kenya.” The decision is a welcome sign that Kenya’s judiciary is emerging from its long subservience to the country’s powerful and often unaccountable executive branch, and that international law might soon be catching up with more alleged war criminals.

The court order demands that Kenyan authorities enforce a March 2009 warrant issued against al-Bashir by the International Criminal Court (ICC) for crimes against humanity and war crimes allegedly committed in the Sudanese region of Darfur. It also implicitly suggests that Kenya’s judiciary may not provide sanctuary to six Kenyans—including potential 2012 presidential contenders Uhuru Kenyatta and William Ruto—who have been indicted by the ICC for allegedly inciting murderous ethnic violence following Kenya’s deeply flawed December 2007 presidential election.

But will Kenya’s power elites accept and obey the rule of law? When new Supreme Court chief justice Willy Mutunga, or a lowly magistrate, issues an order, will corrupt politicians or abusive police comply? Optimism in Nairobi seems largely founded on the belief that reforms and rule of law are so very obviously necessary for Kenya and its peoples that elites with control over guns as well as money will part with their privileges for the greater good.

The willingness of Kenya’s current leaders to honor the new dispensation will be tested surrounding national and local elections that are due by December 2012 and are expected to be vigorously competitive. Sustained global pressure on these leaders to respect the rights and processes detailed in the new constitution could prove pivotal—as was the concerted diplomatic intervention that helped end the postelection violence in early 2008.

Chief Justice Mutunga’s remarkable and highly ambitious agenda to revive and reform Kenya’s judiciary will be a bellwether—and perhaps catalyst and guarantor—for wider reforms in the country. Hopes are high that decades of judicial impotence in addressing crime at the top reaches of Kenya’s government and society will be disappear along with British-style wigs and robes—recently banished from the courts by Mutunga—and that the corrupt age of Kenya’s political “dinosaurs” will end.

“The Supreme Court will be modern, paperless and the home of progressive and robust Kenyan jurisprudence,” according to Mutunga, a civil society activist and former political detainee who in May took the helm of the top court created by Kenya’s new constitution. The clear message from the Kenyan people, he says, is “Clean Up, Now!”

Kenya entered this new political era in August 2010, when voters overwhelmingly approved a constitution drafted by an independent committee that included non-Kenyan experts. The charter markedly enhances basic rights, significantly constrains the executive, and devolves some powers to 47 newly created county governments. The referendum was arguably the most honest electoral exercise in Kenyan history. Turnout topped 72 percent, and over two-thirds of the 12.4 million voters favored the radical reconstruction of Kenya’s political system.

However, implementation in Parliament is still heavily influenced by political dinosaurs across all parties, and has been slow, uneven, and incomplete. The autonomous Commission for the Implementation of the Constitution (CIC) reports that many provisions in 21 bills enacted in August 2011 failed to meet constitutional requirements; on some matters, the CIC was not consulted at all.

There is especially intense elite resistance to combating corruption. The law creating a new constitutionally mandated anticorruption body excluded crucial prosecutorial powers. “Some of the gains we thought we made under the new constitution are being clawed back,” warns Professor P. L. O. Lumumba, who was removed as anticorruption chief in August after less than a year on the job.


                                              Kenya post-2007 election violence

Elite impunity is a serious challenge throughout Kenyan society. Police and  prosecutors lack resources and apparently the resolve to pursue high-level crime or widespread human rights abuses. The security services sometimes seem simply beyond any law. The ICC’s efforts to bring prominent Kenyans to account for inciting ethnic conflict in the wake of the December 2007 elections came only after Kenyan authorities failed to pursue charges against them.

Some believe that the terrible conflict after the 2007 presidential poll, which killed over 1,100 people and nearly descended into civil war, has chastened ordinary Kenyans sufficiently to eschew future ethnic violence. The ICC cases might also work to deter new instigation. Nevertheless, the dangers posed by ethno-political divisions persist. The principal parties set to contest the 2012 elections are still formed around ethnic identities, which have been the bases for patronage in land, jobs, and business since the country gained independence in 1963.

Kenya’s new constitution is a potentially powerful vehicle for deep and democratic change. But the document signifies little unless its provisions are properly implemented by political leaders and fearlessly enforced by the courts. Watchdog efforts by Kenya’s increasingly independent media and monitoring and advocacy by its vibrant and capable civil society are also crucial.

The country’s friends in the international community should support domestic groups by urgently insisting that the independence and authority of Kenya’s judiciary and election authorities be respected. And when necessary, they must act quickly and decisively—by naming and shaming, issuing further travel bans, imposing asset freezes, and supporting ICC investigations—to help end the impunity of Kenyan political dinosaurs who still raise roadblocks to the rule of law.

* Thomas R. Lansner is adjunct associate professor of international affairs at Columbia University’s School of International and Public Affairs and an academic adviser to Freedom House’s Freedom in the World survey. He visited Kenya in late October to conduct research for Freedom House’s Countries at the Crossroads report.

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