BY CJ emeritus Dr WILLY MUTUNGA
I want to recall the painful story of Benedicto Kiwanuka, the Ugandan politician, appointed Chief Justice by Iddi Amin. As a leader in the Democratic Party, Kiwanuka became the first African Chief Minister of Uganda in 1961. He also became Uganda’s first Prime Minister when Britain granted Uganda internal self-government in 1962.
CJ Kiwanuka was arrested in his office at the High Court by members of the Ugandan Army. They were not in uniform. After his arrest he was taken to Makindye military prison where he was brutally murdered. His body was removed and placed in a jeep for disposal. There was a report that the jeep was set ablaze by members of the security forces on Kampala-Entebbe road. Needless to say CJ Kiwanuka’s remains have never been found.
In the same edition of the Transition is carried Wanume Kibedi’s open letter to Iddi Amin after his resignation as foreign affairs minister and fleeing the country. The letter reminds Iddi Amin that he “specifically” demanded CJ Kiwanuka’s elimination. Indeed, Iddi Amin had attacked the CJ in a public rally a month earlier without naming him. Iddi Amin had confirmed the CJ’s arrest to Kibedi. Kibedi also confirms that the CJ was murdered in Makindye military prison.
CJ Kiwanuka made several rulings against the government in the weeks before he was abducted. He had granted bail to a man while warning the police of the importance of their internalization and protection of freedoms of Ugandan citizens – a warning that rings true today as it did over 40 years ago. He also allowed an application for a writ of habeas corpus for a detained British businessman. In allowing the application he had stated that, “The military forces of this country have no powers of arrest of any kind whatsoever.” Iddi Amin reversed this order through one of his military decrees giving the military powers of arrest. When African executives begin to imperiously override and ignore judicial decisions, nations begin to take the wrong turn leading to violence and underdevelopment.
The Transition states that the “real reasons for Kiwanuka’s arrest are a matter of speculation.” It could have been because of the courageous decisions reflecting his fierce independence. Kibedi does suggest that Iddi Amin believed the CJ was the “mover of small pocket of opposition.” It is very interesting how Kenya’s own first African Chief Justice, Kitili Mwendwa, was himself forced out of office, accused of plotting a coup and consorting with the opposition (it was common knowledge he had been Jaramogi Odinga’s Permanent Secretary before his appointment as Chief Justice, and also a close friend). He was forced to resign his position in July 1971 after serving for three years. 14 years after his resignation, and a brief stint in Kenyan Parliament he died in a controversial car crash. Unlike CJ Kiwanuka, he was only initially put under house arrest. I am told that Kitili was Obote’s roommate at Makerere.
Judicial independence has been at the core of the world’s democratic and constitutional evolution. The principles of ‘separation of powers’ and ‘checks and balances’, principles that govern inter-branch relations within the state, and of which judicial independence is a conceptual derivative, have been the holy grail of the modern nation state for centuries now. Lee and Campbell define judicial independence as the principle that focuses on the creation of an environment in which the Judiciary can perform its judicial function as one of the three branches of government without being subject to any form of duress, pressure or influence from any person or other institutions, in particular the other branches of government.
Modern transformative constitutions go deeper than the traditional definition by demystifying the duress, pressure or influence. They do this by providing in their provisions the requisite qualifications for judges, and the process of their recruitment. Robust public participation has become a key requirement in the recruitment of judges. In the case of Kenya all judicial officers are appointed by or on the recommendation of the Judicial Service Commission (JSC).
In the cases of CJ, DCJ (Deputy Chief Justice) the Commission sends to President names of the candidate for each position for vetting by Parliament. The Executive is represented in JSC by two officers, both appointed by the President: the Attorney General and the representative of the Public Service Commission. The President appoints two other Commissioners to represent the public, not himself, at least in theory. Whatever other views the President has have to be channeled through the JSC for consideration, including the JSC giving due process to the candidates to respond to those views. For judges of the High Court, Court of Appeal, and Supreme Court it is the JSC that recruits and the President swears them in office.
Some constitutions provide for the financial independence of the Judiciary from both the Executive and Parliament. In the case of Kenya, the Constitution provides for the creation of the Judiciary Fund. Parliament has come up with a legislation for the setting up such a Fund, but after a very protracted struggle. The terms and conditions of judicial officers are critical to the independence of the Judiciary as an institution and the decisional independence of the judicial officers themselves. Retirement benefits of judicial officers are equally critical to stave off the temptation of judicial officers providing for their retirement through corrupt means.
The disciplining of judicial officers while observing the principle of the security of tenure is the task of independent Judicial Commissions or Councils. Accountability of judicial officers to the public and other arms of government, their honouring their oaths of office, and the monitoring of how they perform their duties is also a critical ingredient to the independence of the Judiciary.
Cardinal to the independence of the judiciary is the integrity of the judicial officers themselves. Judicial Commissions seek the participation of the public in their decision on the suitability of individuals who apply for those positions. The Commissions will seek integrity reports from the Bar, from Universities, arms of state such as the Revenue authority, intelligence, and criminal departments. Commissions have the capacity to conduct their own investigations on the issue of integrity. In Kenya we have found it is dangerous to rely on reports by departments of the other arms of state without verifying them and giving the candidates due process about allegations of integrity. Where serving judicial officers apply, their personal files can be perused to find out if they have ever had integrity issues.
There are other pressures, duress, and influences that are normally ignored. These are the insidious and invisible influences. These are the seduction of power; ethnic communities; opposition political parties; religions; family, friends; vested corporate and civil society interests; and international community, a euphemism for economic, social, political, and cultural foreign interests.
Let me give a few more examples from my own experiences. My independence as a Chief Justice was tested critically by my ethnic community who expected me to prioritize building of courts in the three counties they inhabited. Our priority was to build courts in the marginalized counties of Kenya. The eminent members of the community did not tire of telling me that the protection of the community is critical for my security of tenure as Chief Justice. When I told them that I was the Chief Justice of all Kenyans, they warned me not to come to them when I got into political trouble. I retorted I would seek protection from the communities I build courts for. Political parties, whether in power, or out of power, seek to influence judicial officers. Indeed, the external pressures, influences, and duress should be exposed when they occur. Judicial Service Commissions, the Advocates, and the masses of the people should be in the forefront of protecting judicial officers from these pressures.
In my view Judicial courage means the defiance of pressures, influences, and duress based on the following attributes: the fidelity to the Constitution, the Oath of Office, and the law; the support of the bar and organized civil society; confidence of the broad masses of the people in the Judiciary; and alignment of the pressures in favour of the individual judicial officer. Of course, individual and personal courage is important. Indeed, a judicial officer’s intellectual, ideological, and political views in the society she or he serves and commitment to them is also core to judicial courage. I believe the readiness to die for causes of judicial independence and integrity is the ultimate judicial courage.
The bar and the bench are twins joined at the hip of judicial independence, integrity, courage, and politics. In case Ugandan advocates may delude themselves that they are immune to the discussion here let me tell briefly the story of Willie Kimani, an Advocate of the High Court of Kenya. Kimani took up a matter of boda boda operator, Josephat Mwenda. Mwenda instructed Kimani (who worked for the International Mission) to assist him seek redress for injuries inflicted upon him by a police officer.
On June 23, 2016 Kimani and Mwenda took a taxi driven by Joseph Muiruri to Mavoko Law Courts, in Athi River about 16 kilometers from Nairobi. Mwenda’s case was coming up for mention that day. The three of them were abducted by administrative police officers after the mention as they drove back to Nairobi. After details emerged that the three had disappeared the Law Society of Kenya (LSK) took up the matter and filed a habeas corpus application before a judge of the High Court. The Judge ordered that the application be heard after seven days. Before the application was heard the bodies of Kimani, Mwenda, and Muiruri were discovered floating in gunny bags on the Ol-Donyo Sabuk River in Machakos county, a county that borders Nairobi county. This was on July 1, 2016.
On the hearing of the application the Judge made orders: that the mobile telephony provider, Safaricom, to produce all communication details involving Kimani’s phones; that an autopsy of the three bodies be done; and the appearance in court on July 5, 2016, of the Director of Criminal Investigations, Investigating Officers already seized of the matter, and head of the Flying Squad (this squad was formed within the police force to investigate and track stolen cars, but it graduated to involvement in extrajudicial killings as well. A very familiar story in many African countries).
The postmortem report revealed the gruesome manner in which the three citizens were murdered. The murderers tied their hands behind their backs and bludgeoned them with blunt objects. Kimani was hit severally on his head, and his genitals were crushed. The murder of the three citizens was condemned by the LSK, other bar associations in Africa and abroad, foreign missions in Nairobi.
On August 11, 2016 the court ruled on the habeas corpus. It held that the Administration Police officers abducted Kimani, Mwenda, and Muiruri, took them to a place that was not disclosed, tortured them, and finally brutally murdered them. In his ruling the judge also spelt out the role of Advocates under the Constitution warning that without an independent, courageous, and efficient bar the rights of citizens under the Constitution would not be promoted and protected.
As I finish writing this address the judgment against the Administration police officers is being read by a judge of the High Court.
The theme of this lecture, the Quest for Justice and Rule of Law, manifests itself more robustly in the intersection between law and politics. The distinction between politics and law is an aberration: politics is the science of allocating power and resources; law is the science that provides the rules and regulation for that allocation. Indeed, if Judiciary was not political it would not enjoy constitutional creation and standing. Judges cannot be subjected to the appointive and confirmatory powers by politicians – the Executive and Legislatures respectively – and then claim to be apolitical. Even on issues of ‘pure law’, where there is no unanimity, judges do that very political act: vote.
Professor Oloka-Onyango has just published a brilliant book, When Courts Do Politics: Public Interest Law and Litigation in East Africa. Within this title are two express questions, namely, “Do courts do politics?”and “when do they do politics?” He answers these questions in the affirmative giving the title of the sixth chapter of his book “At the Pinnacle of Politics: Deciding a Presidential Election.” I agree with him. Courts do politics and do politics all the time. How do they do it?
Judicial politics are reflected in our jurisprudence (we are not limited to expression through judgements), our extrajudicial expressions in scholarly writings, speeches, media interviews, our extrajudicial activities with the people. In all these judicial and extrajudicial activities our ideological and political positions are reflected.
Professor Upendra Baxi (a distinguished Indian radical scholar who is also an organic intellectual) states that all judges are active but not all judges are activist. He makes the following distinction:
An active judge regards herself, as it were, a trustee of state regime power and authority. Accordingly she usually defers to the executive and legislature; shuns appearance of policy making; supports patriarchy and other forms of violent exclusion; and overall ‘stability’ over ‘change.’ In contrast an activist judge regards herself as holding judicial power in fiduciary capacity for civil and democratic rights of all peoples, especially disadvantaged, dispossessed, and deprived. She does not regard adjudicatory power as repository of the reason of state; she constantly reworks the distinction between the legal and political sovereign, in ways that legitimate judicial action as an articulator of the popular sovereign. This opposition implies at least one irreducible characteristic of activist adjudication: that a judge remains possessed of inherent powers to mould the greater good of the society as a whole.
This, indeed, is a context of demystifying decisional independence of judicial officers as well as the independence of Judiciary as a whole. I believe that active judges in Baxi’s categorization are also activist for the status quo; while the activist judges in his categorization are very active. Given societal responsibilities that Baxi correctly imposes on them, they surely must work very hard by refusing to be legal centric in their approaches. These are contradictory processes because society is compromised of conflicting interests. There are, therefore, political struggles in the Judiciary itself based on each judicial officer’s intellectual, ideological, political, social, and cultural position. Judicial officers should stop deluding themselves that they are not doing politics. Whether their politics emerges from their judgments or their extra-judicial scholarly writings and speeches, judicial officers have consigned the Judiciary to what Baxi calls “an institutional political actor.”
Professor Baxi writes: I believe it is time to take stock and say what judges regard as unsayable: that the Supreme Court [of India] is a centre of political power. I believe that the recognition of this fact, howsoever belated, is worthwhile as it would be conducive to the clarification of the political role of the Court. And, such a recognition will impel us to ask more relevant questions as to what kind of political role the Court ought to play in a changing India.
Professor Oloka-Onyango in his book quotes, as Professor Baxi does in his book, CJ Bagwati of the Supreme Court of India as saying that the “Indian Constitution is a document of social revolution…The Judiciary has therefore a socioeconomic destination and a creative function.”
In the case of Kenya my view has been that the Constitution is activist and I believe our judges and other judicial officers are all expected to be activist in their quest to implement an activist Constitution. Kenya’s Constitution is activist in origin, intent, objective, principles, and content. Even the ‘most conservative’ reading of the Constitution should ineluctably lead to a progressive outcome, unless its text is gravely tortured. Indeed, the Constitution’s political vision is not wholly liberal but has some radical ingredients of social democracy (with pillars of decentralizing and democratizing the imperial presidency, the whole gamut of rights, devolution, equitable distribution of power; democratizing and decolonizing state’s machinery of violence, its values and principle, including the participation of the people in the affairs of the state) and that is the politics the judicial officers are supposed to do.
Judicial independence is for all people. Judicial officers should constantly and consistently ask themselves in whose interests the independence of judiciary is for. They should also accept they have differing visions of this independence on the basis of their differing intellectual, ideological, political, social, and cultural positions. This is the essence of Professor Baxi’s contribution to this issue. So, independence of judiciary is a contested terrain among the judicial officers that gives rise to its own political struggles. This also means that after judicial officers struggle against the pressures highlighted above to achieve their individual independence, a further struggle ensues that addresses the question in whose interest this independence is exercised.
Judicial officers are decreed to do the politics of the Constitution and not their own as allowed by common law jurisdictions. In my view, therefore, the Constitution seeks to rescue the retrogressive judicial officers from their politics while reinforcing the politics of the progressive ones.
While in the Judiciary I saw my role as decidedly and robustly political by dint and invitation of the new Constitution. I was vocal in my extra judicial pronouncements made possible by the occasions I had to give speeches; and also write scholarly articles. Since I did not precipitate the filing of cases my politics in judgments was not as frequent as the extra-judicial engagements. Some of my extra-judicial pronouncements found their way into some of my judgments, as they were outcomes of my frequent reflections on the interface between law, politics, society and economy.
Judiciaries and Judicial officers in Africa and the entire dominated Global South are at a crossroads. We either succumb to the pressures, the duress, the influence I have discussed briefly here and become their appendages and slaves, or we become missionaries of justice that our people have confidence in, and in turn can protect us more than any state can. African Judiciaries should also recognize their historical mission and play a more earnest role in promoting democracy, rule of law and justice in Africa.
One party regimes, multiparty regimes, military dictatorships, labour movements, civil society, professional organisations have made their contributions to Africa’s governance agenda – with mixed results even though largely disappointing. The second generation Constitutions invite Africa judiciaries to have their turn and markedly improve on the record of political parties, militaries, civil societies in consolidation of democracy and expansion of development. That is the logic of the expansive Bill of Rights that is a predominant feature of these Constitutions.
But for African Judiciaries to successfully emerge as an ally for Africa’s governance and developmental transformation, they must speak with courage, integrity, credibility – and become real institutions of consequence in Africa’s governance landscape not handicapped by fear and a frightful kowtowing to the Executive and other influences. Judiciaries may be the last frontier for the real transformation of African politics and development. They must therefore not flinch from this historical duty.
Even with a less progressive constitutional moment, Chief Justice Kiwanuka was able to exhibit judicial courage and independence in the vital quest for justice and the rule of law. All the judicial values I have discussed here are worthy dying for. Chief Justice Benedicto Kiwanuka did not die in vain. I believe his memory and spirit lives amongst most of us. And that’s why he is the only Chief Justice whose memorial we celebrate.
In Chief Justice Benedicto Kiwanuka’s death we can begin to think and imagine how critical judicial courage and integrity are to the Rule of Law, Justice, stability of a nation, and the overall transformation of our countries. Indeed, Constitutions and law are instruments of societal transformation, a reality that has to be internalized by judicial officers, the other arms of state, and the mass of the people in our societies.
Long Live the Courage and Spirit of Chief Justice Benedicto Kiwanuka. May he rest in peace as we struggle on to give him justice by unearthing the truth of his murder.
Speech (abridged) delivered at the High Court grounds in Kampala in commemoration of Chief Justice Benedicto Kiwanuka