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Former Chief Justice Willy Mutunga
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Former Chief Justice Willy Mutunga: Courts do politics and do politics all the time

15 January 2018 - 14:01

Remarks by former Chief Justice Dr. Willy Mutunga at the 4th Annual ACME Lecture on Politics and the Media. 

DEDICATION:

I dedicate this lecture to the late Professor Dani Wadada Nabudere. A leading African and Ugandan Marxist revolutionary he supervised my LL.M Thesis in the Faculty of Law, Dar es Salaam, 1973-4 and was instrumental in leading me in the right path in my intellectual, ideological, political, social, and cultural development. His revolutionary ideas did not die with him. Indeed, his 1989 manuscript which will be published soon, A Critique of the Political Economy of Social Imperialism is a great revolutionary text.  As discourses on socialism, Marxist advocacy, the dangers Africa continues to face from imperialism of the West and East rage on, this text will help us in our continuing search for the paradigms of Liberation.

I thank the African Centre for Media Excellence (ACME) for the invitation to deliver this lecture. In Bernard Tabaire, the CEO I found a controversial young man. As Issa Shivji’s argues “You can’t attain excellence if your controversial!” Nonetheless, I rule in favor of ACME that you will attain transformation of the media and alternative politics. That will exceed excellence because your controversy and success will be societal, and hopefully, revolutionary.

I also acknowledge the first three lecturers before me: Trevor Ncube, a media owner; Fatuma Abdulahi, a Somali feminist, broadcaster, and a digital entrepreneur; and Eric Chinje, head of African Media Initiative based in Nairobi, also a social entrepreneur.

Since arriving yesterday I have met my Ugandan comrades, many of whom are here this afternoon. It is has been a great comradely reunion for me. I thank everybody who is here. Mr. Kabushenga, thank you for being here to moderate the Q & A.

THE STRUCTURE OF THE LECTURE

In this lecture I will reflect on its theme by drawing on my own experience as head of the Judiciary in Kenya, 2011-2016. I believe this approach would keep you awake. It is not a discussion in a vacuum.

I intend to deliver this lecture as follows:

First: A discussion that extends the conceptual and practical parameters of the traditional analysis of the principle of the independence of the Judiciary. I hope to demystify this principle and lay it bare. I will also attempt to persuade African judges to stop deluding themselves that they are not doing and engaging in politics;

Second: A discussion on how politics and the media impact the theory and practice of the independence of Judiciary; and

Third:  I will conclude the lecture to usher in the Q & A:

I: INDEPENDENCE OF THE JUDICIARY

Let me give you the modern traditional definition of the principle.

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 the Judicial Service Commission (JSC). In the cases of CJ, DCJ 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 Chair 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 due process for the candidates. For judges of the High Court, Civil 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 disciplining of judicial officers while observing the principle of the security of tenure, is the task of an independent Judicial Commissions or Councils. To reinforce this independence is the provision of retirement packages through statutes.

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 some few more examples from my experiences.

Before I do that I want to pose and say that the pressures from the executive can result in dire consequences including death of judicial officers. 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. Some of you may know of the details written in Transition, No 49, page 15, but I will repeat them here for the young generations attending this lecture.

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 has 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 to realize the importance of the freedoms of Ugandan citizens. 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.

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.” Independence of judiciary is, therefore, a cause judicial officers, members of the bar, and citizens should be prepared to die for. That cause clearly is political.

The first of these insidious influences is the seduction of power. I encountered the seduction of power through the various rituals on the day of my swearing in on June 20, 2011. I was driven by a police officer in ceremonial uniform in a Mercedes Benz. My brother, my son and my daughter were driven in a SUV behind me. A convoy of cars driving judges and members of JSC followed. We had police outriders and police cars with sirens. The route to State House did not have moving traffic except our convoy. I could see Kenyans lined up along the route waiting for our convey to pass. Suddenly, I was beginning to like this ritual. I even thought of asking the driver to open the roof so that I could greet the Wananchi! Then I stopped dead in my tracks.

I recalled an experience in Harare when I and others were kept waiting for President Mugabe’s motorcade to pass. We were not allowed to cross the road until after he passed, a hour later with sirens and a convoy of sleek cars. A white man who waited with me, cursing and hissing, finally looked at me, smiled and said:”There goes Bob and the Wailers.” That incident reminded me of my position on these motorcades of VIPs, an expensive, extravagant, and uncaring nonsense meant to intimidate the public.

When we got to State House I was the centre of attention. The President, Prime Minister, the Vice-President, the Speaker, Ministers and bureaucrats welcomed to me to their club with open arms. The swearing-in took place witnessed by the representatives of the three arms of state. Photos were taken (my brother and my kids had photos taken with all these powerful men. There were a few women the Registrar of the Judiciary being among them), video, and the Presidential Press Unit was in attendance. Even my short speech which warned them “ Be ye so high, but the law is above you” did not dampen the festivities. That feeling of happiness, kept on coming back into my head. I would push it back on every occasion.

It was now time to go back to the Supreme Court where other judges waited. The media also waited. I was to make another speech on the steps of the Supreme Court. I was escorted to my car by among others Professor K. Kibwana who was then the President’s constitutional adviser. There was now a new Mercedes Benz, flying a national flag with new number plates that read CJ1. I had more security personnel in my car and others in the “chase  car.” With the sirens on and noisy I got to the Supreme Court in five minutes.

That night I reflected on the seduction of power and banished its various forms. I decided to resist it and came up with strategies to do so. A few days ago I read this poem by Issa Shivji. I was happy I had heeded his warning:

         Going to bed with power is romantic

         It’s seductive

         Avoid power like plague

         For it’s infectious

         It kills the human in you

         Planting a ghost

The second, which I believe was the greatest challenge I faced on my administrative independence as head of the Judiciary came from the leaders of my Kamba community. It was clear to me that the representatives of the community, some even self-appointed wanted to ethnicize my public office. On a trip to my county to lay a foundation stone for the reconstruction of a Magistrate’s court to accommodate a High Court I was told that the three Kamba counties needed new and big courts not refurbished ones. I was also told that a “homecoming party” would be organized for me. I rejected the party because I had had one in the Korogocho Slum of Nairobi (which is the home of all poor Kenyans from all ethnic communities) where I had worked for decades with human rights groups.

As for the courts I told the community leaders that our transformation plan was to build courts in the marginalized counties in North Frontier District, the corridor stretching from Turkana to Garissa. I then addressed the ordinary people present and told them about mobile courts which would come to them, traditional justice systems that they regarded as forums where they would get justice, and about formal courts not being accessed by the poor. I made sense to them and I won that round against the leaders. But they did not give up. My answer to them at all times was: “I am the CJ of all Kenyans. I do not need the community protection.” The response from these representatives of my community was stern: “If you get into trouble do not come to us!” I retorted, “I will go to the communities I building courts for!” I got into trouble with the broad masses of the community after the 2013 presidential petition. My community, through its baron, was allied to CORD. Even my rural relatives and family expected me to rule in favor of the community baron.

Thirdly, the corporate and international community interests expressed their agenda through courtesy calls. They remained diplomatic. Like the Executive and Parliament no direct or indirect demands were made of me. They seemed happy with our blueprint for reform, the Judiciary Transformation Framework.

Fourthly, upon my appointment secular civil society leadership told whoever cared to listen that the civil society had captured one arm of the state. I created spaces for collaboration with civil society. They helped me draft regulations for the implementation of the Bill of Rights. They sat in the Court Users Committees all over the country. Some organizations joined the National Council for the Administration of Justice, an organization that brought together the entire chain for the administration of justice. Some of the civil society leaders would not talk to me after the verdict in the 2013 presidential petition. Fortunately, their organizations did not divorce the Judiciary. This is an experience that I have been reflecting upon. I intend to deal with it in my memoir. 

Fifthly, incorruptible judicial officers can have their independence subverted by their spouses, family, and friends. I talked to my family, children, friends about them not being brokers. I warned them that I will have intelligence gathered to ensure they did not get into trouble. I used to tell my colleagues in the Judiciary to be very careful when an aunt who has a knitting shop in the village comes to their offices unannounced and is suddenly interested in some court case!

For a judicial officer to be independent they cannot ever think of taking a bribe. Although Kenyan judicial officers sign a declarations of their wealth every  two years they are not bound to make them public unless someone applies for  them under Article 35 of the Constitution (Freedom of Information). I held the view that under Article 10 of the Constitution on values (transparency and accountability) judicial officers could actually do so. I also think that forensic lifestyle audits would be a great tool in judging the integrity of judicial officers.

I believe that independence of the judiciary, and the decisional independence of individual judicial officers is about the integrity of the judicial officers. I believe the fundamental pillar for this integrity is the ideological and political position of a judicial officer. Yet this is the pillar judicial officers are told to distance themselves from as if it was possible. Building people’s confidence in the judiciary and judicial officers lies on integrity. A judicial officer will be seen and perceived to be a woman or man of integrity if the authors of the pressures, duress, and influence narrated here know the judicial officer cannot be manipulated by them. These forces should also know that the judicial officer cannot be manipulated by their enemies. Whatever the decision she or he makes can be critiqued or supported on the basis of real and perceived honesty of the judicial officer. Where judicial decisions are seen through various divisive lens of our people, clearly the integrity of judicial officers is of monumental political importance. It gives judicial officers great moral authority to speak to societal issues that impact transformation.

 

II: POLITICS

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.

Those of us who are familiar with the Marxist Theory of State and Law would reach the same conclusion by revisiting Karl Marx’s Preface to a Contribution to the Critique of Political Economy. “The sum total of these relations of production constitutes the economic structure of society, the real foundation, on which rises a legal and political superstructure…The mode of production of material life conditions the social, political and intellectual life process in general.” Engels wrote that “The economic situation is the basis, but various elements of the superstructure…political forms of the class struggle and its results, to wit: constitutions established by the victorious class after successful battle etc juridical forms, and even reflexes of all actual struggle in the brains of the participants, political, juristic, philosophical theories, religious views and their further development into systems of dogmas…also exercise their influence upon the cause of historical struggles and in many cases preponderate in determining their form. There is an interaction of all these elements…” Engels intervention is authority for the fact that the superstructure does not merely conform to the economic base passively.

Antonio Gramsci (the Italian school teacher, who jailed in fascist Mussolini’s jail developed the theory of the organic intellectual, “the intellectual who, through his [her] analyses , [her] his visions becomes an indispensable auxiliary of social movements) moved the focus from economic relations in society and discussed the essence of politics, culture and ideology. His analysis has given the whole debate on base and superstructure a different dynamic. His construct of “ideological hegemony” bears his creativity.  In this construct , the superstructural features like law, religion, education, mass culture take a new role. Their role is to reinforce class domination so that this domination is not based solely on the state’s control and use of the machinery of violence.

If as Engels has argued the state is the “Collective capitalist” (today the collective imperialist/social imperialist/compradorial) and law is “ a system of juridical standards and prescriptions expressing the will of the ruling class and protected by the coercive power of the state, then the judiciary as an arm of the state cannot be immune from politics. The interpretation of the constitution and law is a political project.

Going back to the relations between base and superstructure the constitution and law are part of the superstructure as is politics. The base determines the long movement of history. There is a dialectical relationship between the two. In my view these vital aspects of the superstructure are significant forces in the short to immediate term. I would add, however, that they play either a progressive or a retrogressive role depending on the way they are used to fight the base (in our day and age imperialism) or reinforce it. Whether these aspects play a progressive role, whether they have transformative potential depends on who uses them and how. I believe progressive forces in the Judiciary can use the constitution and law in moving society towards fundamental transformation.

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: namely, 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 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, The Indian Supreme Court and Politics, CJ Bhagwati of the Supreme Court of India as saying that the “Indian Constitution is a document of social revolution…The Judiciary has therefore a socio-economic 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. 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.

Our Constitution has a vision for the independence of the Judiciary and the decisional independence of judicial officers. This vision is found in the provisions on qualifications for appointment, the recruitment process, the chapter on integrity and leadership, and the constitutional decree that judicial power is derived from the people. 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.

Our Constitution decrees us to make law! We are commanded to develop the law in interpreting common law and statutes that do not comply with human rights and freedoms so that they so comply. That comforting illusion of the common law that judges do not make law has been rightly decolonized by the 2010 Constitution.

I have argued in my writings that the 2010 Constitution is unusual in setting out a theory of interpretation. This theory, derived from the provisions of the Constitution and the Supreme Court Act, 2011, denies resort by judicial officers to the common law canons of interpreting statutes and constitutions that allow judicial officers, in so doing, to routinely reflect their intellectual, ideological, political, social, and cultural biases. 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 judges from their politics while reinforcing the politics of the progressive judges.

While in the Judiciary I saw my role as decidedly and robustly political. 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 hawk 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. And this is what I told the Senate in my address to the House two days before my retirement on June 16, 2016:

The 2010 Constitution is exactly activist by origin, design, text and intent. It has almost eliminated or blurred the traditional activist-judicial restraint divide. That is why it commands the courts in Article 159(2) to exercise judicial authority [which Article 159(1) decrees is derived from the Kenyan people] guided by the ‘purpose and principles of this Constitution…’- principles which are in Article 10, and which include such progressive principles as human dignity, social justice, human rights, sustainable development, protection of the marginalized, integrity, and so on. I sometimes wonder what the conservative meaning of these principles is! I wonder, too, what possible conservative meaning one could assign to the constitutional commandment in Article 259 that the Constitution must be interpreted in a manner that advances the rule of law, human rights and fundamental freedoms while permitting the development of law and while adhering to the delightful doctrine that the law is always speaking.

I believe progressive and transformative jurisprudence by African courts is possible, particularly in those countries that have transformative constitutions. I believe such progressive and transformative jurisprudence is the ammunition African Judiciaries have to use in making their contribution to the liberation of Africa from imperialistic domination, occupation, exploitation, and the resultant denial to identify concrete African interests by our ruling classes. PanAfricanism and African Unity must find their way into African progressive and transformative jurisprudence. And that will only happen if African judiciaries stop deluding themselves that they do not do politics. We are in a century that all existing ideas are being historicized, interrogated, demystified, debunked, and deconstructed challenging our intellectual, ideological, political, social, and cultural comfort zones. It is yet again as history records an age of transformation and revolution.

III: THE MEDIA

My ascendancy to head one of the three arms of government (even though sometimes I think it is not an arm but a stump given its budget size and the historical sociology of power that has relegated it as such, and from which the transformation agenda was trying to rescue it), took place under the full and furious glare of the media. The Kenyan media covered the recruitment process that resulted in my rising to the post of the 14th Chief Justice of Kenya since independence and the 1st President of the Supreme Court of Kenya.

The process of my recruitment  was covered live, and that gave me an opportunity to address Kenyans directly on my candidature. Even as I appeared before the JSC or the Parliament, I knew that my real audience was the Kenyan people. The media covered my inauguration as  narrated above and gave me great coverage in the print media and on the TV channels. I could not be blamed for believing that the media was part of the astronomical expectations that Kenyans clearly placed on the shoulders of the Judiciary and my leadership there. It is the reason that in my 120 Days Address in October, I cautioned against the ‘messiah mentality’-of putting up one person on a pedestal, and expecting her/him to move the world on her/his own.

I proceeded  to open the Judiciary to the media. Judicial proceedings in all cases that the media wanted to cover live took place. I even set up the first fully-kitted media centre within the Court premises. I made sure that the Judiciary blueprint on transformation, the Judiciary Transformation Framework 2012-2016 was launched under the full glare of the media. Every step of the implementation of this blue print involved and valued the involvement of the media. I attended discussions in many of the TV stations, the first time, I think, that a CJ was in TV and radio studios to answer questions. The Judiciary engaged a communications expert, Kwamchetsi Makhoha to assist me in keeping the media involved in the many projects we carried out under our blueprint. We really breathed and lived the provisions of Article 10 of the Constitution. We were transparent and accountable and from a strategic point of view, believing that ‘sunshine was the best antiseptic’. We literally laid ourselves bare-a radical approach for any government agency in the world, and doubly radical one for an arm of government that had been insular, conservative and closed such as the Judiciary. And this openness worked in our favour in the long run, as we managed to cultivate direct public trust. When the ‘power elite’ conspired to fight the transformation programme, we drew healthily from this public account of trust and goodwill. We were more believed than those who were fighting us.

What I discovered was that the media had made profits when institutions were opaque and unaccountable. The media was accustomed  to secrecy in government and institutions. The idea of carrying out a very public transformation was a little of a shock to it. I believe the media is still recovering from this shock. This situation gave the media the chance to speculate, engage in rumor and gossip, and dig deep into the so-called Kenyan rich grapevine, in sum the sensationalization of news. It seemed to me that sunshine was not necessarily the the best antiseptic that I hoped would cure opaqueness and non-accountability in the country. It seemed that transparency and accountability seemed to irritate major sections of the media for whom there was no ‘discovery’ or ‘gotcha’ moments which are the fuel that drives the media frenzy.

Soon we were engaged in corruption cases that the media did not cover objectively. In a case that pitted the Judiciary and the other arms of the state, the media was partisan in favour of the corrupt. It was rather bizarre that, instead of applauding the first arm of government that, on its own motion, investigated corruption and took decisive action against top officials, the media and Parliament took to blaming us for acting. Our projects that we hoped were beacons of change for other institutions, including the other arms of the state, were not news in the national interest. Very soon, I and the Judiciary became the hunted; the national irritant that challenged the stability of the status quo! The suits for libel filed against the media by judges took place at this time. What a greater target against the independence of a judge than calling into question her/his integrity? 

As analyzed above the media just like law, religion, and the judiciary are part of the superstructural features that impact the economic base. The media has its retrogressive elements that attacked us. But there were also progressive elements, however minority voices in the wilderness, that became part of the resistance against the retrogressive elements. The Judiciary received honest feedback -both critical and supportive- from the cartoonists and some oped columnists who believed in our transformation such as Professors Godwin Murunga and Karuti Kanyinga; civil society leaders who are columnists such as George Kegoro, Wachira Maina, Maina Kiai, and Professor Makau Mutua. Some journalists, Muriithi Muthiga,Kwamchetsi Makhoha, Patrick Gathaara, John Githongo, Emeka-Mayaka-Gekara, and Charles Onyango Obbo, among others supported our transformation. Two publications, Nairobi Law Monthly and the Platform (Walter Khobe who teaches law at Moi University has tracked the development of our jurisprudence) have consistently tracked the judiciary reforms. The support, in some occasions also included ruthless criticism of what we were doing. If an institution wants to reform it must at all times value its critics.

Two great cartoonists, besides supporting our transformation have also been my close friends. They are Geoffrey Mpembwa (Gado), Paul Kalemba (Maddo). They and Charles Onyango Obbo became my drinking buddies when I was in the Judiciary and after. We would meet on Friday nights and choose good food and fine wine. We would thank capitalism for producing good commodities, but condemn it for the exploitation of the workers, and for the unequal distribution of these commodities. We would share stories of the continent. I would get brilliant advice on the transformation of the Judiciary from these comrades. I would explain the Judiciary blueprint only to see cartoons that satirized it! Obbo would occasionally take to the clouds in his analysis, but we would bring him back to earth the next time we break bread and toast our Motherlands. This is an example of solidarity among multidisciplinary progressive superstructures for transformation.

I slowly became a student of the media. I read books by leading American dissidents because I wanted to start with the Empire. So works by Noam Chomsky [Manufacturing Consent: The Political Economy of Mass Media with Ed Herman; Necessary Illusions; Media Control: The Spectacular Achievements of Propaganda], John Foster, and Robert McChesney [ McChesney’s book Blowing Roof Off Twenty-First Century: Media, Politics, and the Struggle for Post-Capitalism Democracy is a great radical read] among others were useful sources. I read I Accuse the Press by Philip Ochieng and other texts, which accurately locate the conduct and behaviour of the media in its political economy context, a fact I knew, but which I only came to appreciate better when judiciary transformation started to upend vested interests by re-arranging power relations between the three arms of government and fighting corruption. I have never stopped being a student of the media.

I love Pope Francis when he does politics. As a former Roman Catholic I am one of Papa Francisco soldiers. I believe he is Allah’s gift to his Church. He delivered a condemnation of capitalism, and capitalist media that McChesney describes as “unsparing and radical.” Pope Francis argued:

 

Today everything comes under the laws of competition and the survival of the fittest, where the powerful feed upon the powerless. As a consequence, masses of people find themselves excluded and marginalized without work, without possibilities, without means of escape.

                  …

While the earnings of a minority are growing exponentially, so too is the gap separating the majority from the prosperity enjoyed by those happy few. This imbalance is the result of ideologies which defend the absolute autonomy of the marketplace and financial speculation… A new tyranny is thus born…The thirst for power and possessions knows no limits. In this system, which tends to devour everything which stands in the way of increased profits, whatever is fragile, like environment, is defenceless before the interests of a deified market, which become the only rule.

 

                Did I hear you say Amen?!

I became active on Twitter immediately after my swearing-in. Nobody in the Judiciary seemed to support my move. I was convinced, however, that I could use social media to build public confidence in the Judiciary. I spent time answering inquiries about cases, lost files, dates of admission of lawyers to the bar, and complaints against judicial officers. I was convinced that social media was about keeping in touch with the Kenyan public engaged in it and seek their confidence.

At the beginning there were many things I did not know about social media. As a good student of the media I sought to study social media. I did not know much about the Internet giants or monopolies and cartels. I did not know that “Three of the four most valuable publicly traded corporations in the United States are Internet firms, and fourteen of the thirty-two most valuable firms are primarily Internet firms.” So, I got introduced to Google, Microsoft, Yahoo, Youtube, PalTalk, Skype, AOL, Apple, Amazon, Facebook, eBay,  Intel, Cisco, Oracle, and Qualcomm. I began to appreciate what Foster and McChesney call “the centrality of communication in the political economy.” They also show the links between the internet giants and the military, and US government. The surveillance link between US government, these corporates, and the military is clarified by Foster and McChesney. I found their discussion on how drones are used to spread the Internet to new areas (as well as surveying people’s needs for advertisers) are linked to their military use illuminating. So, there is now “military-digital complex,” “military-financial- digital complex,” and “government-corporate surveillance complex.” Foster and McChesney have categorized this neoliberal phenomenon as “Surveillance Capitalism.”

My reflection on “Surveillance Capitalism” as it relates to judicial independence is this: Will the intelligence gathered about the judiciary and judges be used to attack their respective independence? Should we not be reflecting on the principles of the separation of powers and checks and balances since there are forces that are mightier (and unelected and un-appointed) than the arms of the state? Are not what are called “deep states” or “invisible governments” becoming the rulers while we still believe in the myths of “independence” “three arms of state,” “checks and balances,”and “separation of powers?” Can we use this surveillance to fight corruption in our countries if we have political leaders who are committed to fighting corruption? These questions constitute new frontiers for inquiry into the independence of the three arms of state. It looks to me like the arms are enslaved by these unelected and un-appointed forces that their creed is profits before people.

Social media for me was also an antidote to the seduction of power that I narrated above. It became a leveler forum where I got abused, defamed, attacked, and brought down to earth as an ordinary mortal. I believe it is Lenin or some other revolutionary who said that even the insane have sane moments. As Africans we know that the market madman or woman has some sane moments if only we listen. I benefited from many of what I thought were sane moments from the insane and hateful people on social media. More crucially I benefited from the ever sane ones, including comrades across the globe.

Upon delivering the decision on the 2013 petition an angry CORD supporter posted this Tweet: “From now on you are the Chief Injustice of Kenya.” This post set me thinking why judges are called “Justice” even when they are involved in gross injustice, corruption, sexual harassment, enslaved by the pressures we have highlighted and other inequities. I took this criticism up as part of the transformation discourses about judicial culture. I extended the discussion to other areas by demystifying other words, such as “prophets, reverends, bishops, archbishops, the Holy Father, imams, sheikhs, mullahs, gurus, etc.” As if this was not enough I also received a letter from my village soliciting a donation. The letter was signed by a woman who described herself as “President of the Kilonzo Village Funeral Committee.” This was great since the word “President” had been freed by the 2010 Constitution. Some woman in my village was breathing and living that freedom!

Our Constitution has robust provisions on the freedom of the media and access to information. I am now aware of the fundamentality of communication in any economy. Access to information is critical for participation of the people in matters of their society. Ruling groups cover up information that enables them to get away with immunity and impunity. I gave forensic lifestyle audit as a great example in dealing with corruption in the judiciary and elsewhere in the society. Media whose sole objective is profits before people cannot be relied upon to deliver on all critical communication. Fortunately, the bands of resisters and strugglers in the media give us hope and optimism.

In discussing structural reform McChesney persuasively argues that journalism should be treated as a public good. He argues, “Like education, it [professional journalism] it is a public good, and, as with education, the more resources that are devoted to it, the better it will be, everything being equal.” He gives the example of “Norway’s massive public broadcasting system as well as its extensive newspaper subsidies, which allow Oslo to have numerous daily newspapers rather than one or two that would exist if left to the market.” McChesney argues that “The crucial goal should be establish a nonprofit, noncommercial, competitive, uncensored, and independent press system, embracing digital technologies. It is where the debate and discussion out to go.” ACME are you listening?

The media is among the pressures, duress, influences that impact upon the independence of the Judiciary. The core of the media is corporate and puts profits before the public good that our progressive constitution is agitating for. For Kenyans I have urged that we live and breathe life into the constitutional provisions that call for structural media reforms that will enhance our transformation.

IV: CONCLUSION

I hope I have demystified the independence of the Judiciary. I hope I have exploded the myth that judges do not do politics. I believe I have illuminated the integration between judicial independence, politics and the media as contradictory processes because our societies are composed of conflicting interests. And I have shown how such integration gives birth to retrogressive or progressive solidarity between and within disciplines. I hope I have raised issues on the theme of the lecture for debate and discussion going forward.

I told Bernard Tabaire that I was a student of the media and I did not want him to throw me into the deep end. He calmly said, “say one or two intelligent things about the media.” I believe I have said at least two intelligent things about the media. And those in my view are both the idea of journalism as a public good and the impact of surveillance capitalism on our politics, judiciary, and the media. Debate and discussions in ACME (where other relevant stakeholders are invited) will breed more ideas.

I thank you for listening to me. 

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