A few days ago a Kenyan judge ordered the government to arrest Sudanese President Omar al-Bashir if he ever sets foot in Kenya. Mr. Bashir has an outstanding arrest warrant against him from the ICC for crimes against humanity committed since 2003 in Darfur.
The ruling has since metastasized into a full blown diplomatic row; Khartoum expelled the Kenyan ambassador before rescinding the expulsion, and is now threatening to cut all trade ties with Kenya, expel Kenyans living in Sudan and deny any planes leaving or going to Kenya from flying in its airspace – if the government does not take back the ruling in two weeks.
The diplomatic row aside, the case has implications for the reform process in Kenya. The case is a test of the depth of the Kenyan judiciary’s new found independence from the executive.
According to Khartoum:
“al-Bashir expects Nairobi to scrap the arrest warrant within the next two weeks and not simply file an appeal.”
That is not how the judicial process works in a democracy. The executive cannot just scrap a judicial ruling. Within Kenya, for the sake of precedence the government must be seen to be complying with court rulings. The Chief Justice has already warned the executive against ignoring the court ruling saying that
“If a country chooses to live by anarchy, it must be ready to face the consequences of disregarding the law.”
It remains unclear what the executive will do given Khartoum’s two week ultimatum. Disregarding the court ruling will come with consequences for the individuals involved – in particular the Foreign Minister and the Commissioner of Police.
Former president Moi infamously liked warning voters that siasa mbaya maisha mbaya (bad politics leads to a bad life). This was code for vote for the opposition and no roads, no schools and no hospitals for you.
The framers of the new Kenyan constitution must have particularly disliked the power of the presidency in doling out development money and other patronage largesse. According to the Daily Monitor (Ugandan Daily):
“From 2012, it is likely to have the most limited presidency in Africa. The president has only about 10 per cent of the budget to dole out his patronage and fund his pet projects. The bulk of the rest are fixed; both by a constitutional cap, and a negotiation process.”
It will be interesting to see how the Kenyan presidency evolves following this revolutionary clipping of its powers. Already the executive has seen its powers watered down by an increasingly powerful parliament. To reinforce this trend, the judiciary has just seen the appointment of a card carrying reformer as Chief Justice. A powerful judiciary will provide a check not only on the presidency but on the wider executive branch as well – especially the now independent and obscenely corrupt Kenyan ministries.
Credit for the relatively more limited presidency also goes to President Kibaki.
Many forget that for a long period of time Kibaki governed with Moi’s constitutional powers. It is a relief that the limited presidency will now be both de facto and de jure, especially because there are way more Mois than Kibakis vying for the presidency in 2012.
A word of caution, though. Institutions are not automatic fixes to problems of governance. They are like incomplete contracts that have to be reinforced by numerous conventions and “gentleman agreements.” The Kenyan political elite may yet find ways to circumvent the spirit of the new constitution.
Tomorrow’s Sunday Nation opinion pieces are full of complaints against the ever growing culture of impunity among the ruling class in Kenya. We have become a nation in which cabinet ministers remain in office even when suspected of having ordered the killing of Kenyans a year ago, or turning a blind eye when public corporations were being looted by their cronies. The police chief, the Attorney General and the justice minister still remain in office even after a UN-sanctioned report blamed them for allowing extra-judicial killings to take place in Kenya. The entire judiciary is one giant sty filled with corrupt judges and officials. Everybody knows this but no one wants to do anything.
This may seem naive, but I am kind of surprised that Hussein Ali and Amos Wako are still in office. Especially Amos Wako. He is the man who is responsible for most of the rot in the judiciary. Under Moi he did nothing as the former president and his friends bastardized the judiciary. Kibaki probably kept him on on the request of Moi so as to protect himself and his friends against potential law suits. I say it is time Amos Wako went. He has been Attorney General for far too long with very little to show for it. During his tenure corruption has ballooned like no one’s business but with very few people ever being brought to court.
And about our corrupt cabinet ministers…. Where is the supposedly vibrant Kenyan civil society? I think it is time they took Philip Ochieng’s advice and started agitating for the sacking of certain people implicated in the many scandals that have rocked the country in the last several months.