LSK under Kibaki: Era when lawyers became entangled in major contradictions


Perhaps nothing sums up the promise of the NARC administration better than seeing the newly appointed Tourism minister Raphael Tuju walking to KICC and throwing officials of then just defeated ruling party KANU, out of the party’s headquarters at the Kenyatta International Conference (now Convention) Centre (KICC). This was one of the very first acts of reclaiming public property from the misappropriation it had been subjected to under the just-ended KANU regime. The KANU administration had turned the publicly-funded KICC into its party headquarters, but NARC, having campaigned on a platform of reclaiming public property lost to corruption under KANU, reversed this, asserting that the iconic building belonged to the Kenyan public rather than a political party.

Kanu stalwarts from second left Chair Uhuru Kenyatta, Secretary General Nick Salat and President Moi’s long serving personal lawyer Mutula Kilonzo after Kibaki’s new administration locked them out of KICC, their party headquarters in 2002

Generally, the NARC administration, under the leadership of Mwai Kibaki, was expected to reform the country, and to set it on a path different from KANU. The administration’s interaction with the rule of law came to take on three distinct dimensions. The first dimension involved continuity with the rule of law heritage bequeathed to the administration by the preceding Moi administration, the most important of which was the heavily amended Independence (Reginald Maulding) Constitution of 1963.

The second dimension consisted of the rule of law regime which emerged in the aftermath of the 2008 Post-Election Violence (PEV), with the most important institution emerging during this dimension being the Committee of Experts on Constitutional Reforms (CoE). The third dimension emerged with the constitutional changes, which came with the new 2010 Constitution.

Each of the three dimensions exposed the Kibaki administration’s attitude towards rule of law. Under the first dimension, the administration early on in its life boosted rule of law by instituting a number of initiatives aimed at reversing the official lawlessness of the Moi era. Among these included setting up commissions of inquiry into at least two major public scandals of the Moi era, i.e. Goldenberg (chaired by Justice Samuel Bosire) and irregular/illegal land acquisition (chaired by lawyer Paul Ndung’u). Further, the new administration strengthened the anti-corruption legislation through the enactment of the 2003 KACC (Kenya Anti-Corruption Commission) Act and provided it with an early impetus to successful recover stolen public assets.

In addition, the administration embarked on two major reform initiatives aimed at boosting the rule of law in the country. These were the Constitution review process under the Prof. Yash Pal Ghai-led Constitution of Kenya Review Commission (CKRC) and the so-called radical surgery of the Judiciary, spearheaded by a Judicial Commission headed by Justice Aaron Ringera. Whereas the CKRC process was geared towards giving the country a new Constitution, which the Kibaki administration had promised to enact within the first 100 days of its ascendancy into power, the radical surgery was aimed at ridding the Judiciary of officials suspected of unprofessional conduct.

In addition, Parliament, in which KANU was a minority party for the first time in Kenya’s independence history, reasserted itself as a checks and balances institution by instituting a number of oversight initiatives aimed at boosting rule of law. A major example here was the formation of a parliamentary select committee in early 2003 to inquire into the assassination of former Foreign Affairs Minister, Robert John Ouko in February 1990.

Unfortunately, the Kibaki administration soon abandoned these early efforts aimed at boosting rule of law. This was characterised by a number of developments. First, the CKRC process stalled. This was largely due to the significant differences that emerged within the ruling NARC coalition. The coalition broke into two factions, i.e. the National Alliance of Kenya (NAK) led by Mwai Kibaki, and the Liberal Democratic Party of Kenya (LDP) led by Raila Odinga. Whereas the LDP faction pushed for a parliamentary system, the NAK faction insisted on a strong presidential system. Failing to reach a compromise, the NAK faction walked out of the CKRC proceedings, which were in their final stages at the Bomas of Kenya conference centre in Nairobi. The CKRC went ahead and finalised the draft of the Constitution agreed to by delegates at the Bomas conference, with Prof Ghai as CKRC chairperson handing over the draft Constitution to Attorney General (AG) Amos Wako.

The Kibaki regimes’s interaction with the rule of law came to take on three distinct dimensions. The third and last of the dimensions emerged with the constitutional changes that came with the new 2010 Constitution

Upon receiving the draft of the proposed CKRC (popularly called Bomas) Constitution, the Kibaki administration constituted a new committee led by AG Wako and lawyer Abida Aroni and mandated it to ‘fine-tune’ the Bomas draft in accordance with the position of the NAK faction. The Wako/Aroni committee came up with a newer version of the Constitution, so-called Kilifi/Wako draft, which was then subjected to a referendum in 2005. The draft was voted against by a simple majority of Kenyan voters. With the rejection of the draft Constitution, this signified a halt, albeit temporarily, to the quest for a new Constitution, and the Kibaki administration reverted back to the Independence Constitution in running the country.

The second reform initiative which ran into headwinds was the ‘radical’ surgery. Granted, the Ringera-led commission listed a number of judicial officials suspected of having engaged in professional misconduct and had them either resign or face a tribunal headed by retired Chief Justice Majid Cockar to defend themselves against accusation levelled against them. The biggest casualty of the process was Chief Justice Bernard Chunga who opted to resign rather than face the Cockar-led tribunal. However, the success of the process was called to question after it got entangled in litigation, with at least three of the listed high court judges successfully litigating against their listing by the commission. Further, the process was caught up in politics, with critics dismissing it as having exhibited ethnic favouritism, making unsubstantiated claims against judicial officials and being riddled with many inconsistencies.

The third reform initiative which stuttered under the Kibaki administration was the fight against corruption. Efforts in this direction began to falter due to fights to control the Kenya Anti-Corruption Commission (KACC). The Commission had been one of the products which emerged out of pressure on the Moi administration by external accountability actors, particularly the World Bank and the IMF. As part of its efforts to deal with corruption cases of the Moi era, the Kibaki administration appointed new directors into the Commission soon after ascending into power. The directors were first ratified by both the Anti-Corruption Advisory Board chaired by LSK chairperson Ahmednassir Abdullahi and Parliament prior to their appointment. They included Aaron Ringera as head of the KACC, with Fatuma Sichale, John Mutonyi and Smokin Wanjala as his three assistants.

However, the Kibaki administration rejected the nomination of a fourth assistant director, one Julius Rotich. It cited concerns over Rotich’s integrity and lack of adequate qualification. The administration stated that it had raised these concerns with the Abdullahi-led Advisory Board, but they had been ignored. In reaction to the administration’s rejection of Rotich’s appointment, Abdullahi pulled LSK out of the Advisory Board, citing Executive interference in the workings of the Anti-Corruption Advisory Board. The whole episode lost KACC the credibility to fight corruption and set it on a path of damaging litigations, which eventually made it unable to continue its operations.

As Chair of the KACC Board by virtue of being head of LSK, Mr Abdulahi resisted President Kibaki’s usurpation of the board’s powers by refusing to appoint one of the directors, a standoff that resulted in Mr Abdulahi’s resignation as the board’s chair in protest.

The fourth area of failure involved the commissions of inquiry which the Kibaki administration had set up in its earlier days in power to investigate past acts of impunity. A pattern emerged in which the commissions carried out investigations, but their recommendations were not followed through. This was the case with the three Commissions of inquiry into the Goldenberg scandal, the illegal/irregular allocations of public land and the assassination of former minister Robert Ouko.

Having abandoned the path of reforming the country and dealing with past acts of impunity, the Kibaki administration engaged in its own excesses, mirroring those of previous administrations. Three of these stood out, namely high-profile corruption, murders of suspected state ‘enemies’ and mismanagement of elections. The most high-profile case of corruption under the administration was the 2003 Anglo leasing scandal. The scandal involved 18 security-related contracts collectively worth Sh55 billion meant to supply forensic facilities, security equipment and support services for various security agencies in the country. It was initially unearthed by Ntonyiri MP Maoka Maore in April 2004 and led to investigations by both Parliament and the Kibaki administration’s Permanent Secretary for Governance and Ethics, Mr John Githongo. The investigations hinted at high-profile Kibaki government officials as being behind the scandal.

In response, the administration attempted to stop investigations into the scandal both internally by the KACC and Mr. Githongo and externally by the UK’s Serious Fraud Office and authorities in Switzerland. It then indicated that those behind the scandal had offered to return back the money they had misappropriated. However, this was contradicted by the fact that the administration continued to make payments to the companies involved in the scandal. Eventually, between November 2005 and February 2006, the administration sacked at least two ministers who had been adversely mentioned in the scandal. It also made efforts at prosecuting a few of the suspects. Other scandals of a much lesser profile were to characterise the rest of the administration’s tenure.

As for murders, three stood out. The first was the murder of university lecturer Chrispine Odhiambo Mbai in September 2003. The Truth, Justice and Reconciliation Commission (TJRC) report revealed that Mbai was killed due to his political views on Devolution. The second involved the murder of human rights activists Oscar Kang’ara and John P. Oulu in March 2009. The duo was killed by suspected security agents due to the work it was doing in highlighting the crackdown on the adherents of the Mungiki sect by police officers. The third was the murder of Muslim cleric Aboud Rogo in July 2012. His death was suspected to have been carried out due to his alleged links with the Somalia-based Al Shabaab terrorist group. Besides actual murders, fear of assassination against perceived opponents of the Kibaki administrations was rampant, especially with the coming into the country of the controversial pair of Artur brothers through sponsorship by powerful government officials and politically connected individuals. So rampant was the fear that Mr. Githongo, being a high-profile whistle blower of the Anglo leasing scandal, fled the country into self-exile in the UK for fear of being assassinated.

Perhaps the excess of the Kibaki administration that had the greatest consequences for the country was the mismanagement of the 2007 General Election. The 2002 elections that had ushered the Kibaki administration into power had been managed under an arrangement spearheaded by Parliament called the Inter-Parliamentary Parties Group (IPPG) initiative. The initiative provided for balance in representation of both government and the opposition sides in the Electoral Commission of Kenya (ECK), making the body more legitimate across the political divide. This initiative was largely the reason why the 2002 election was hailed as Kenya’s freest and most transparent.

Unfortunately, as the 2007 election approached, the Kibaki administration abandoned this initiative. Using the massive powers over the ECK conferred on it by the Independence Constitution, the administration went ahead to unilaterally constitute the commission. This had the effect of reducing opposition representation in the ECK. Secondly, the administration exploited the control it enjoyed over security organs and deployed sections of these organs as polling agents in Opposition strongholds.

Collectively, these measures were perceived to have skewed the elections in favour of the Kibaki administration. So much so that when the ECK declared President Kibaki, the Party of National Unity (PNU) candidate as the eventual winner of the 2007 Presidential Election, this was heavily disputed by Raila Odinga, the candidate for the Opposition’s Orange Democratic Movement (ODM). The disputed electoral outcome led to post-election violence in which more than 1,000 Kenyans were killed. The violence and general breakdown of law and order attracted international mediation.

A key product from the mediation was the National Dialogue and Reconciliation Agreement (National Accord) which was signed by both PNU and ODM.It provided four agenda items which formed the basis of pulling the country out of the post-election crisis and put it on a path of reform. These consisted of Agenda 1, which focused on the restoration of fundamental rights and freedoms and immediate end to violence; Agenda 2, which dealt with the humanitarian situation and aimed at promoting healing, reconciliation and restoration; Agenda 3, which sought to solve the immediate political crisis; and Agenda 4, which focused on long term measures involving constitutional, institutional, land and legal reforms.

Collectively, the four agenda items ushered in the second dimension in the Kibaki administration’s engagement with rule of law in the country. Each item provided for specific institutions and processes that had a major implication on the rule of law in the country. From the fourth agenda item, the most critical institution was the CoE. Chaired by lawyer Nzamba Kitonga (now late), and guided by the 2008 CKR Act, the CoE was perhaps the most successful of the initiatives during this dimension.

It made reference to both the earlier Bomas and the Kilifi drafts and from both drew a Harmonised draft Constitution. The Harmonized draft was subjected to public input, but more significantly revision by a parliamentary select committee on constitutional review sitting in Naivasha, which came up with the Naivasha draft. The Naivasha draft, plus public input in the Harmonized draft were again reviewed by the CoE, which came up with a proposed Constitution of Kenya. The proposed Constitution of Kenya was subjected to a referendum in June 2010 and was voted for by majority of Kenyan voters. It was officially enacted as Kenya’s Constitution on August 10, 2010.

The passage of the 2010 Constitution had tremendous ramifications for the rule of law in Kenya. Not only did it usher in the third dimension in the relationship between the Kibaki administration and rule of law, but it also significantly reconfigured the relationship between the Executive and the rule of law institutions. In promoting judicial independence and reinforcing the separation of powers, the new Constitution enacted at least one major change. This involved changing the structure of the judiciary by introducing the Supreme Court of Kenya (SCOK). Prior to the change, the highest court in Kenya had been the Court of Appeal. With the change, the Judiciary acquired an important additional level that helped infuse within it a hierarchy necessary to counter Executive domination.

Beyond changing the structure of the Judiciary, the new Constitution also demanded at least two major changes in the institution. First, it required the resignation of Evans Gicheru, the Chief Justice who was serving at the time of the enactment of the new Constitution. In his place, a new Chief Justice would be recruited in a process spearheaded by the newly constituted Judicial Service Commission (JSC), with little influence or interference from the Executive. The JSC recruited Willy Mutunga as the first Chief Justice under the new Constitution. Prior to the JSC taking over the process, however, the Kibaki administration attempted to appoint Court of Appeal Justice Alnashir Visram as the new Chief Justice. This was contested by the prime minister Raila Odinga, leading to the revocation of the appointment, and to having the JSC take over the recruitment process. The JSC-led process became one of the first steps towards making the Judiciary independent of the Executive.

Secondly, the new Constitution demanded a new vetting of the Judiciary. The purpose for this was to clear the institution of any judges deemed unfit to serve within it. Following this directive, the Kibaki administration constituted a Judges and Magistrates vetting board chaired by veteran lawyer Sharad Rao. The board went ahead to investigate and declare a number of judicial officials as unfit to serve in the Judiciary. The overall expectation from the vetting was that it would improve the integrity of the Judiciary.

As for Parliament, the new Constitution set up at least three significant changes, which reinforced the institution’s independence from the Executive. First, it re-introduced a bicameral parliamentary system, with both the Senate and the National Assembly. Although the senate’s powers were whittled down in Naivasha by the parliamentary select committee, it still retained a significant role, especially in protecting the newly instituted devolved governments. Secondly, it provided for a complete separation of Parliament from the Executive by abolishing the practice of having cabinet and assistant ministers appointed from among the MPs. Thirdly, it provided for increased oversight on the Executive through setting up parliamentary committees.

To reinforce the separation of powers, the Constitution provided for additional checks and balances institutions in addition to the reconfigured Judiciary and the bicameral Parliament. This consisted of reinforcing already existing institutions such as the Kenya National Commission on Human Rights (KNCHR), the Kenya National Audit Office (KENAO) and the Ethics and Anti-Corruption Commission (EACC). It also involved establishing new institutions such as the Director of Public Prosecution (DPP), which was separated from the Attorney General’s office, the Commission for Administrative Justice (CAJ, also known as the Ombudsman), the Gender and Equality Commission and the Controller of Budget among others.

In sectors where Executive dominance had been particularly perverse such as the security and electoral management sectors, the new Constitution provided for new elaborate institutions. For instance, within the security sector, it provided for the Independent Police Oversight Authority (IPOA) and the National Police Service Commission (NPSC). Whereas the IPOA was to provide independent oversight on police behaviour by investigating and sanctioning cases of abuse of power within the service, the NPSC was to ensure professionalism in the recruitment and management of personnel in the service.

As for the electoral management body, the 2010 Constitution provided for an Independent Electoral and Boundaries Commission (IEBC). The institution was constituted of both commissioners and a secretariat. The commissioners were recruited through a three-way process that commenced with recruitment by a panel constituted by the President, then validation by Parliament and appointment by the President. Once appointed, the commissioners were to serve a fixed period of time, with little direction from the Executive or any other institution. The new institution held its first election in 2013, resulting in litigation at the newly established Supreme Court of Kenya, in which it was accused of mismanaging the election. Nonetheless, it was absolved of intentional wrongdoing, especially the suspicion that it was still under Executive manipulation.

In conclusion, it can be stated that the Kibaki administration faced the most dynamic rule of law context of any Kenyan administration during its period in power. The context had at least three dimensions. In the first dimension, the administration inherited the institutions set up under the Independent Constitution, but which had undergone significant alteration to concentrate power in the presidency. The administration’s first years in power sought to maintain this status quo. However, this led to the post-election crisis of 2007/08. The crisis led to the second dimension of the administration’s interaction with the rule of law institutions. It ushered in a period of reform and reconciliation. Out of the second dimension, a third dimension emerged, especially with the enactment of a new Constitution in August 2010.

The new Constitution altered the country’s rule of law terrain by populating it with new institutions, but also reinforcing older ones. The new set up gave the country a dynamic rule of law context in which Executive power began being vigorously contested, reducing its ability to dominate every facet of Kenyan life. In the second part of this article, we shall examine how the LSK interacted with the Kibaki administration, and the specific actions it took to either challenge or support the administration in the promotion of the rule of law under the dynamic conditions provided by each of the three dimensions.

Writer is studying LSK history for a PhD from Egerton University

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