In recent years, the Kenyan judiciary has faced intensified scrutiny and criticism from political figures, reflecting a broader public distrust of the judiciary.
3D judge’s gavel, https://www.ccpixs.com – Licence CC BY-SA 2.0
As a political scientist examining the evolving dynamics between Kenya’s judiciary and political figures, I argue that despite the establishment of Kenya’s 2010 Constitution, designed to safeguard judicial independence, the role of political rhetoric and strategic public discourse has significantly shaped the public’s perception of the judiciary. While the constitution aimed to reinforce the autonomy of the judiciary, the persistent public attacks on its legitimacy reveal a troubling trend: judicial independence is often compromised by how political leaders frame and communicate issues.
A 2022 survey revealed that only 11% of Kenyans believe that court decisions are fair and impartial. This long-standing public scepticism, which predates recent administrations, reflects not just a disillusionment with the legal process but also frustration with how politicians manipulate the judiciary to advance their agendas. This discussion highlights the importance of understanding these influences, emphasising that public perceptions are shaped more by the discourse around judicial decisions than by the actual judicial processes. We often focus more on substantive actions and reforms that the judiciary needs, rather than what is sometimes said about it.
The relationship between Kenya’s judiciary and political interests has long been fraught with tension. During Jomo Kenyatta’s presidency, political control extended deeply into judicial matters, with detention without trial being a method to stifle perceived political dissent. This practice persisted under Daniel Arap Moi, who used similar tactics to suppress opposition and manage political narratives. The judiciary was frequently accused of bias and failure to uphold the law impartially. The appointment of expatriate judges in Kenya during the early years of independence was closely tied to political considerations rather than purely impartial expertise.
Jomo Kenyatta and his successor, Daniel Arap Moi, sought to bring in foreign judges to mitigate local political conflicts and to serve their specific political interests. Judges such as James Wicks (Kenya’s longest serving Chief Justice), Alfred Simpson, C. B. Madan, Allan Hancox, Cecil Miller, and F. Apaloo were selected not just for their legal expertise, but also for their perceived ability to align with presidential expectations.
These judges often enjoyed substantial privileges and luxuries, which may have further incentivised their compliance with the political agenda of the time.
The early 2000s saw a significant attempt to address these issues with the Ringera Report, commissioned under President Mwai Kibaki. The 2003 report was a bold move aimed at purging corruption from the judiciary by implicating 23 judges and 82 magistrates. However, the Ringera Report faced criticism for potentially being a witch hunt designed to remove unpopular judicial figures rather than a genuine effort at reform. There were further allegations of ethnicity as a driving force behind this purge. Critics argued that the Ringera committee lacked a robust mechanism for addressing systemic issues and was more about political manoeuvring. On the other hand, the purge restored some level of public confidence in the legal system. This sense of renewed faith was reflected in a 2003 Gallup poll that named Kenyans as the most optimistic citizens in the world, signalling a collective hope that reforms would lead to greater judicial accountability. However, this optimism was short-lived, as Odinga’s distrust resurfaced in the aftermath of the 2007 elections, highlighting the judiciary’s ongoing struggle to maintain public trust amid Kenya’s turbulent political landscape.
In the aftermath of Kenya’s highly contested 2007 general election, Justice Evan Gicheru controversially swore in President Mwai Kibaki in a hurried and secretive ceremony late in the evening, amid mounting political tension and electoral violence across the country. The election results, which many believed were marred by irregularities and vote rigging, had already ignited widespread protests and unrest. Justice Gicheru’s decision to officiate Kibaki’s swearing-in without resolving the growing dispute over the election’s credibility drew significant public criticism, as it was seen as a move that reinforced the perception of the judiciary’s complicity in political manoeuvring. On the other hand, the purge restored some level of public confidence in the legal system. This sense of renewed faith was reflected in a 2003 Gallup poll that named Kenyans as the most optimistic citizens in the world, signalling a collective hope that reforms would lead to greater judicial accountability. However, this optimism was short-lived, as Odinga’s distrust resurfaced in the aftermath of the 2007 elections, highlighting the judiciary’s ongoing struggle to maintain public trust amid Kenya’s turbulent political landscape.
In the aftermath of Kenya’s highly contested 2007 general election, Justice Evan Gicheru controversially swore in President Mwai Kibaki in a hurried and secretive ceremony late in the evening, amid mounting political tension and electoral violence across the country. The election results, which many believed were marred by irregularities and vote rigging, had already ignited widespread protests and unrest. Justice Gicheru’s decision to officiate Kibaki’s swearing-in without resolving the growing dispute over the election’s credibility drew significant public criticism, as it was seen as a move that reinforced the perception of the judiciary’s complicity in political manoeuvring. This action contributed to a loss of confidence in the judiciary at a time when the country was teetering on the brink of crisis. The violence that ensued claimed over 1,000 lives and displaced hundreds of thousands, marking one of Kenya’s darkest political chapters. Gicheru’s role in the rushed swearing-in was viewed as an exacerbating factor in the escalation of the post-election violence.
In recent years, the Kenyan judiciary has faced intensified scrutiny and criticism from political figures, reflecting a broader public distrust of the judiciary. A significant moment occurred in 2017 when President Uhuru Kenyatta publicly declared that the judiciary’s decisions would be revisited. This declaration came amidst the controversy surrounding the 2017 presidential election ruling, where the Supreme Court had annulled Kenyatta’s initial victory, citing irregularities.
Kenyatta’s rhetoric, delivered in areas where he enjoyed substantial support, exemplifies how political figures use public platforms to influence perceptions of judicial legitimacy. While at this, the fact that he called the Maraga bench mikora, which translates to thugs/crooks/fraudsters, carries a deeper meaning within Kenya’s socio-political context, as it evokes the image of criminals who need to be dealt with forcefully. This rhetoric, coming from the president, suggested that the judiciary, much like criminals, was obstructing justice or the will of the people and should be punished or subdued. It cast the judges in a negative light, as though their role in upholding the constitution was somehow an affront to public order.
Similarly, William Ruto has voiced strong criticisms against the judiciary, accusing it of impunity. His remarks during a public address in Nyandarua, a region where he received significant electoral support, reflect how political leaders leverage such platforms to sway public opinion about judicial impartiality. Ruto’s criticism aligns with a broader expectation that judicial decisions should conform to political interests, reinforcing the idea that the judiciary’s credibility is contingent upon its alignment with political figures’ agendas. His remarks were carefully tailored to resonate with the local electorate, using a familiar political tactic: positioning the judiciary as a scapegoat when government initiatives face legal setbacks. By criticising the judiciary in such a public forum, Ruto leveraged his influence to shape the narrative, framing judicial opposition to his policies as an affront not only to his administration but also to the will of the people. This dynamic undermines public trust in the judiciary, as citizens are exposed to conflicting messages from political leaders who praise the courts when convenient and discredit them when rulings are unfavourable.
Over time, this erodes the judiciary’s role as an impartial arbiter, reinforcing a perception that its decisions are subject to political whims rather than grounded in legal principles. Such rhetoric exacerbates public scepticism about the judiciary’s independence, fuelling a narrative that judicial rulings are influenced more by political expediency than by the pursuit of justice. Member of Parliament (MP) Alice Nganga’s recent call to defund the judiciary following the declaration of the Finance Act 2023 as unconstitutional further illustrates this trend. Nganga’s stance emerged after the judiciary ruled against the government’s housing levy, a decision that had significant political implications. Her push to defund the judiciary highlights a troubling pattern where judicial decisions are contested not based on their legal validity but on their political repercussions. This response to the judiciary’s rulings espouses the broader issue of how political figures, informal networks and public sentiment shape the discourse around judicial independence in Kenya. Furthermore, incidents like MP Oscar Sudi’s defiance of court orders in Eldoret, where he led demolitions despite a court injunction, illustrate how public figures openly challenge judicial authority. These events erode respect for the legal system and foster a climate where legal norms are disregarded.
Both Raila Odinga and William Ruto have contributed to the ongoing paradox of judicial independence in Kenya. Odinga, who has traditionally supported judicial autonomy, has at times undermined this principle with his criticism of the judiciary, particularly following the 2022 presidential election ruling. His rhetoric often questions the judiciary’s integrity when decisions do not align with his political interests, creating a complex dynamic between his public support for judicial independence and his reaction to adverse outcomes. Similarly, William Ruto’s stance fluctuates based on the judiciary’s rulings. When the Building Bridges Initiative (BBI) was declared unconstitutional, Ruto praised the courts for upholding the rule of law. However, when his own election victory was affirmed, he again lauded the judiciary. In contrast, when the courts ruled against the various Kenya Kwanza development agendas, Ruto accused them of being compromised, reflecting a selective endorsement of judicial decisions based on political convenience.
After the 2022 election ruling, Martha Karua expressed a commitment to “respect but not accept” the court’s decision, signalling a significant tension between legal compliance and political dissent. This shift in public stance showcases the broader issue of how judicial decisions are interpreted and leveraged by political figures and informal networks to serve their agendas, thereby influencing public perception and the concept of judicial independence. This issue is not just one of perception but also one of legitimacy, especially when political rhetoric, such as President Uhuru Kenyatta’s infamous “We shall revisit” or William Ruto’s accusations of judicial impunity, reinforces the idea that justice is swayed by power rather than law.
Judicial responses and public distrust
In response to these challenges, the judiciary has made efforts to assert its independence. Former Chief Justice David Maraga publicly addressed the issue in 2019, criticising the executive branch for its attempts to undermine judicial authority. Maraga’s statements were a direct response to increasing attacks on the judiciary and attempts to influence its decisions. However, recent developments have continued to fuel public outrage. The ongoing complexities surrounding judicial independence in Kenya highlight a broader paradox. While the 2010 Constitution sought to create a robust framework for judicial autonomy, the persistent influence of political sentiments and rhetoric complicates this ideal. The judiciary’s struggle to assert its independence amid political pressures and public distrust highlights the need for more than just legal reforms; it requires a deeper understanding of the political dynamics at play.
The paradox of judicial independence in Kenya lies in the constant tension between law and politics. Courts are viewed as impartial only when their rulings align with political interests, while adverse decisions invite scrutiny and attacks on their legitimacy. As the judiciary continues to navigate these challenges, the broader question remains: Can it maintain its independence in the face of ongoing political and public pressure? The future of Kenya’s judiciary will depend on its ability to assert its authority while managing the complex relationship with the political class and the public it serves.
© Mikhail Nyamweya 2024
The author has completed the Master of Science in African Studies at the University of Oxford focusing on African Politics – Kenya. Mikhail approves of sharing this article widely.
AW Kamau 2024
