Justice under siege: The rule of law and judicial subservience in Kenya

Human Rights Quarterly

Volumn 23, Issue 1, 2001, Pages 96-118

  Mutua, Makau ^{a,b,c,d,e,f,g,h,i}  

^a UNIVERSITY AT BUFFALO   (United States)

^b HARVARD LAW SCHOOL   (United States)

^c UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

^d UNIVERSITY OF PUERTO RICO   (Puerto Rico)

^e UNIVERSITY OF NAIROBI   (Kenya)

^f UNIVERSITY OF DAR ES SALAAM   (Tanzania)

^g Amer Society of International Law   (United States)

^h Lawyers' Committee for Human Rights   (United States)

ⁱ Kenya Human Rights Commission   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS; INSTITUTIONAL FRAMEWORK; LEGAL SYSTEM;

KENYA;

EID: 0034974307     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2001.0010     Document Type: Article

References (136)

1. See HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 711-12 (1996).
2. See AFRICA WATCH, KENYA: TAKING LIBERTIES 5 (1991).
3. See H. W. O. OKOTH-OGENDO, LAW AND GOVERNMENT IN KENYA: AN OFFICIAL HANDBOOK 27-35 (Republic of Kenya: Ministry of Information and Broadcasting, 1988).
4. See Makau wa Mutua, Human Rights and State Despotism in Kenya: Institutional Problems, 41 AFR. TODAY 50 (1994); See also JENNIFER WIDNER, THE RISE OF A PARTY STATE IN KENYA: FROM HARAMBEE! TO NYAYO! (1992).
5. See Makau wa Mutua, Human Rights and State Despotism in Kenya: Institutional Problems, 41 AFR. TODAY 50 (1994); See also JENNIFER WIDNER, THE RISE OF A PARTY STATE IN KENYA: FROM HARAMBEE! TO NYAYO! (1992).
6. See INTERNATIONAL COMMISSION OF JURISTS, DEMOCRATISATION AND THE RULE OF LAW IN KENYA 11 (1997) [hereinafter DEMOCRATISATION].
7. See HUMAN RIGHTS WATCH, WORLD REPORT 2000: EVENTS OF 1999, 48-50 (2000).
8. See CONST. OF KENYA , § 2(a) amend., act No. 7 (1982). In 1982, President Moi forced a constitutional amendment, making Kenya officially a one-party state. It provided that: "There shall be in Kenya only one political party, the African National Union."
9. See JAMES GATHII, THE DREAM OF JUDICIAL SECURITY OF TENURE AND THE REALITY OF EXECUTIVE INVOLVEMENT IN KENYA'S JUDICIAL PROCESS 14 (1994) [a Kenya Human Rights Commission publication].
10. See DREW DAYS III ET AL., JUSTICE ENJOINED: THE STATE OF THE JUDICIARY IN KENYA 4 (1992) [a publication of the Robert F. Kennedy Memorial Center for Human Rights]; see also HUMAN RIGHTS WATCH supra note 6, at 48.
11. See DREW DAYS III ET AL., JUSTICE ENJOINED: THE STATE OF THE JUDICIARY IN KENYA 4 (1992) [a publication of the Robert F. Kennedy Memorial Center for Human Rights]; see also HUMAN RIGHTS WATCH supra note 6, at 48.
12. See CONST. OF KENYA ch. V, §§ 70-83.
13. For instance, the Constitution of Kenya protects individuals against arbitrary search and entry but then qualifies such protection, in part, in the following language: Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention with this section to the extent that the law in question makes provision (a) that is reasonably required in the interests of defense, public safety, public order, public morality, public health, town and country planning, the development and utilization of mineral resources, or the development and utilization of any other property in such a manner as to promote the public benefit. CONST. OF KENYA ch. 5, §§ 76 (1-2).
14. See CONST. OF KENYA ch. V, § 83.
15. See CAP. 57, Laws of Kenya.
16. The Rule of Law Will Prevail, WEEKLY REV., 12 July 1991, at 26 [reprint of the Attorney General's first speech to Parliament].
17. DEMOCRATISATION, supra note 5, at 19.
18. See CONST. OF KENYA ch. IV, pt. 1, §§ 60(1), 64(1).
19. See id.
20. See CONST. OF KENYA ch. IV, pt. I, § 64(1).
21. See DREW DAYS III ET AL., JUSTICE ENJOINED: THE STATE OF THE JUDICIARY IN KENYA 4 (1992) [a publication of the Robert F. Kennedy Memorial Center for Human Rights].
22. See YASH GHAI & J.W.P.B. MCAUSLAN, PUBLIC LAW AND POLITICAL CHANCE IN KENYA: 1865-1970, 173 (1970).
23. CONST. OF KENYA ch. IV, pt. I, § 62(3).
24. See CONST. OF KENYA ch. IV, pt. I, § 62 (4-7).
25. See CONST. OF KENYA amend, act no. 4 (1988).
26. See CONST. OF KENYA amend, act no. 1 (1990).
27. See DAYS ET. AL., supra note 19, at 21.
28. See DAVID GILLES & MAKAU MUTUA, A LONG ROAD TO UHURU: HUMUN RIGHTS AND POLITICAL PARTICIPATION IN KENYA 22 (1993) [a publication of the Montreal-based International Centre for Human Rights and Democratic Development].
29. See id.
30. See AFRICA WATCH, supra note 2, at 128.
31. See DAYS ET AL., supra note 19, at 42-43.
32. See DAYS ET AL., supra note 19, at 49. (Lawyers would have been required to obtain licenses under the Trade Licensing Act) CAP. 497, Laws of Kenya.
33. See DAYS ET AL., supra note 19, at 51.
34. See, e.g., Parliament Condemned for Downsizing Corruption List, AFRICA NEWS, 20 July 2000, available on Lexis, News Library; Kenya Stalls on Political Reform But Aid Pours In, DAILY TELEGRAPH, 10 Mar. 1995, at 17.
35. See, e.g., Parliament Condemned for Downsizing Corruption List, AFRICA NEWS, 20 July 2000, available on Lexis, News Library; Kenya Stalls on Political Reform But Aid Pours In, DAILY TELEGRAPH, 10 Mar. 1995, at 17.
36. See HUMAN RIGHTS WATCH, supra note 6, at 48.
37. See CONST. OF KENYA ch. IV, pt. III, § 68(1).
38. See CONST. OF KENYA ch. IV, pt. I, § 61(2).
39. REPUBLIC OF KENYA, REPORT OF THE COMMITTEE ON THE ADMINISTRATION OF JUSTICE: SUMMARY OF RECOMMENDATIONS 24 (1998) [hereinafter KWACH REPORT].
40. See id.
41. See ELIZABETH WANIAMA MULI, CONSULTANT'S REPORT TO THE LEGAL SECTOR REFORM COORDINATING COMMITTEE 12 (1999) (reporting that the judiciary is taking steps to implement aspects of the Kwach Report recommendations). See also TOPS MANAGEMENT CONSULTANTS, THE KENYAN JUDICIARY SERVICE: DELIVERY SURVEY (1999).
42. See ELIZABETH WANIAMA MULI, CONSULTANT'S REPORT TO THE LEGAL SECTOR REFORM COORDINATING COMMITTEE 12 (1999) (reporting that the judiciary is taking steps to implement aspects of the Kwach Report recommendations). See also TOPS MANAGEMENT CONSULTANTS, THE KENYAN JUDICIARY SERVICE: DELIVERY SURVEY (1999).
43. GATHII, supra note 8, at 11.
44. See DAYS ET AL., supra note 19, at 18.
45. United Nations Basic Principles on the Independence of the Judiciary, princ. 12, 7th U.N. Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF.121/22/Rev.1 (1985) at 59. The document further provides that: Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings. Id. at princ. 20.
46. See DAYS ET AL., supra note 19, at 5.
47. See CONST. OF KENYA amend, act no. 1 (1990).
48. The Constitution of Kenya reads: A judge of the High Court shall be removed from office by the President if the question of his removal has been referred to a tribunal appointed under subsection (5) and the tribunal has recommended to the President that the judge ought to be removed from office for inability as aforesaid or for misbehavior. CONST. OF KENYA ch. IV, pt. I, § 62(4).
49. DAYS ET AL., supra note 19, at 21.
50. See Magistrates Courts Act, CAP. 10, Laws of Kenya.
51. GATHII, supra note 8, at 11.
52. See Chief's Authority Act, CAP. 128, Laws of Kenya.
53. See Public Order Act, CAP. 56, Laws of Kenya.
54. See Penal Code, §§ 56 & 57, CAP. 63, Laws of Kenya.
55. See MAINA KIAI, INDEPENDENCE WITHOUT FREEDOM: THE LEGITIMIZATION OF REPRESSIVE LAWS AND PRACTICES IN KENYA 3 (1994) [a Kenya Human Rights Commission Publication] for an elaboration of these repressive laws.
56. REPUBLIC OF KENYA, REPORT OF THE COMMITTEE ON THE ADMINISTRATION OF JUSTICE 9 (1998).
57. See id. at 11.
58. See KIAI, supra note 51, at 18. (During President Kenyatta's fifteen-year reign, only one native black African Kenyan, Kitili Mwendwa, served as Chief Justice, and only for a scant two-year period from 1969-1971. In 1978, upon President Kenyatta's death, twelve out of nineteen judges on the High Court and Court of Appeal were foreigners on contract.)
59. Id.
60. See DAYS ET AL., supra note 19, at 23-25.
61. See Lucy Hannan, Bias and Judicial Outrage, 141 NEW L.J. 900(28 June 1991), available on LEXIS, Secondary Legal: Legal News File.
62. See M.M. Kioga, Chief Justice's Pronouncements: (Are they Law or Politics?), 23 NAIROBI L. MON. 7 (Apr./May 1990).
63. See Kaggia v. Republic, E. AFR. L. REP. 451 (1969).
64. See GATHII, supra note 8, at 10.
65. See id. at 10; see also, COLIN LEYS, UNDERDEVELOPMENT IN KENYA: THE POLITICAL ECONOMY OF NEOCOLONIALISM (1975).
66. See When it Comes to Judges, Most of them Have Gone Quietly, WEEKLY REV., 5 Aug. 1988, at 9.
67. See Death in a Car Crash of Kenya's First African Chief Justice, BBC SUMMARY OF WORLD BROADCASTS, 1 Oct. 1985, available on LEXIS, News Library, ARCNWS File.
68. See Why I left Kenya - Schofield, 41 NAIROBI L. MON. 49 (Feb./Mar. 1992) [Speech to the Cayman Bar Association]; see also DAYS ET AL., supra note 19, at 23.
69. See id.
70. See Gitobu Imanyara, The Office of the Chief Justice and Chief Justice Hancox's Challenge, NAIROBI L. MON., Sept./Oct. 1989, at 18; see also DAYS ET AL., supra note 19, at 75, note 43.
71. Schofield, supra note 64, at 50.
72. See GATHII, supra note 8, at 13.
73. Id.
74. See Parliament Amends the Constitution with Surprising Alacrity, WEEKLY REV., 5 Aug. 1988, at 3.
75. Id.
76. See Gitau Warigi, Kenya's Memory of Expatriate Chief Justices, AFRICA NEWS, 10 Dec. 1997, available on LEXIS, News Library, ARCNWS File.
77. See id.
78. See Kenneth Stanley Njindo Matiba v. Daniel Toroitich arap Moi and Others, Election Petition No. 27 of 1993 (1 July 1993).
79. See Charles Wachira, Kenya Politics: A Judiciary Under Siege, INTER PRESS SERV., 16 July 1994, available on LEXIS, News Library, ARCNWS File. See also DAILY NATION, 2 June 1994, at 32; STANDARD, 2 June 1994, at 5.
80. See Charles Wachira, Kenya Politics: A Judiciary Under Siege, INTER PRESS SERV., 16 July 1994, available on LEXIS, News Library, ARCNWS File. See also DAILY NATION, 2 June 1994, at 32; STANDARD, 2 June 1994, at 5.
81. See Jaramogi Oginga Odinga, Citobu Imanyara and Hassan Kadir v. The Electoral Commission, reported in NAIROBI L. MON. Oct./Nov. 1992, at 46 [hereinafter Imanyara & Hassan].
82. See National Assembly and Presidential Elections Act, CAP. 7, Laws of Kenya.
83. Imanyara & Hassan, supra note 76, at 44.
84. Id. at 44.
85. See ROBERT F. KENNEDY MEMORIAL CENTER FOR HUMAN RIGHTS, KENYA AT THE CROSSROADS: DEMANDS FOR CONSTITUTIONAL REFORMS INTENSIFY 9 (1997) [hereinafter KENYA AT THE CROSSROADS].
86. See GATHII, supra note 8, at 17.
87. See id. at 19.
88. See Makau Mutua, A Break with the Past, AFR. REP., Jan./Feb. 1992, at 21.
89. See id. at 22.
90. See id.
91. GATHII, supra note 8, at 22.
92. As the newly appointed Chief Justice, Chesoni was only the second native black African Kenyan to head the judiciary.
93. See Kenya's New CJ Has Rough Start to Term of Office, AFR. NEWS, 10 Dec. 1997, available on LEXIS, News Library, ARCNWS File.
94. See id.
95. HUMAN RIGHTS WATCH, supra note 6, at 49.
96. See id. See also JOEL A. SOLOMON, FAILING THE DEMOCRATIC CHALLENGE: FREEDOM OF EXPRESSION IN MULTIPARTY KENYA - 1993 15-21 (1994) [a publication of the Robert F. Kennedy Memorial Center for Human Rights]; INT'L HUMAN RIGHTS LAW GROUP, FACING THE PLURALIST CHALLENGE: HUMAN RIGHTS AND DEMOCRATIZATION IN KENYA'S DECEMBER 1992 MULTI-PARTY ELECTIONS 14 (1992); AFRICA WATCH, DIVIDE AND RULE: STATE-SPONSORED ETHNIC VIOLENCE IN KENYA (1993).
97. See id. See also JOEL A. SOLOMON, FAILING THE DEMOCRATIC CHALLENGE: FREEDOM OF EXPRESSION IN MULTIPARTY KENYA - 1993 15-21 (1994) [a publication of the Robert F. Kennedy Memorial Center for Human Rights]; INT'L HUMAN RIGHTS LAW GROUP, FACING THE PLURALIST CHALLENGE: HUMAN RIGHTS AND DEMOCRATIZATION IN KENYA'S DECEMBER 1992 MULTI-PARTY ELECTIONS 14 (1992); AFRICA WATCH, DIVIDE AND RULE: STATE-SPONSORED ETHNIC VIOLENCE IN KENYA (1993).
98. See id. See also JOEL A. SOLOMON, FAILING THE DEMOCRATIC CHALLENGE: FREEDOM OF EXPRESSION IN MULTIPARTY KENYA - 1993 15-21 (1994) [a publication of the Robert F. Kennedy Memorial Center for Human Rights]; INT'L HUMAN RIGHTS LAW GROUP, FACING THE PLURALIST CHALLENGE: HUMAN RIGHTS AND DEMOCRATIZATION IN KENYA'S DECEMBER 1992 MULTI-PARTY ELECTIONS 14 (1992); AFRICA WATCH, DIVIDE AND RULE: STATE-SPONSORED ETHNIC VIOLENCE IN KENYA (1993).
99. See id.
100. See Chief Justice Gives Pledge Over Craft, AFR. NEWS, 5 Mar. 2000, available on LEXIS, News Library, CURNWS File.
101. DAYS ET AL., supra note 19, at 9.
102. See id. at 9.
103. See James Kefa Wagara and Rumba Kinuthia v. John Anguka and Ngaruro Gitahi, High Court of Kenya, Civil Case No. 724 of 1988. See Githu Muigai, The Judiciary and the Search for a Philosophy of the Law: the Case of Constitutional Adjudication, in LAW AND THE ADMINISTRATION OF JUSTICE IN KENYA 110-12 (Kivutha Kibwana ed., 1992) [a publication of the International Commission of Jurists-Kenya Section].
104. See DAYS ET AL., supra note 19, at 52.
105. Aaron Gitonga Ringera & 3 Others v. Paul K. Muite & 10 Others, Civil Suit No. 1330 of 1991 (30 Apr. 1991).
106. Id. at 12.
107. Id. at 17.
108. Id.
109. See GATHII, supra note 8, at 21.
110. See KENYA AT THE CROSSROADS, supra note 80, at 9.
111. See id. at 10. See also DEMOCRATISATION, supra note 5, at 58-59 for the full text of another circular issued by the Chief Justice in 1996, instructing magistrates to deny bail to particular offenders, the law and the Constitution notwithstanding. It asked the Attorney General to instruct public prosecutors accordingly.
112. See KENYA AT THE CROSSROADS, supra note 80, at 10.
113. See id.
114. See E. AFR., 3 June 1996.
115. See Judges Condemn State Interference, SUNDAY NATION, 9 Mar. 1997.
116. See KENYA AT THE CROSSROADS, supra note 80, at 11.
117. See DAILY NATION, 5 Apr. 1997.
118. See KENYA AT THE CROSSROADS, supra note 80, at 10.
119. See Catherine Gacheru, Goldenberg: It Goes to the Top, DAILY NATION, 5 OCT. 2000, available on LEXIS, News Library, CURNWS File.
120. See id.
121. See Six Days Later, Kenya Deports Ali, AFRICA NEWS, 3 Aug, 1999, available on LEXIS, News Library, CURNWS File.
122. See id.
123. See id.
124. See M. Warsama, Justice System Put to the Test as MPs Sue Ali Lawyer, AFRICA NEWS, 17 Aug. 1999, available on LEXIS, News Library, CURNWS File.
125. See, e.g., Joel D. Barkan, Leakey Saved Elephants: Now the Public Purse?, CHRISTIAN Sci. NEWS MONITOR, 11 Aug. 1999, at 9.
126. See HUMAN RIGHTS WATCH, supra note 6, at 50; Razia Khan, Kenya's Reform May Appease International Monetary Fund, BRIDGE NEWS, 10 Feb. 2000, available in LEXIS, News Library, CURNWS File.
127. See HUMAN RIGHTS WATCH, supra note 6, at 50; Razia Khan, Kenya's Reform May Appease International Monetary Fund, BRIDGE NEWS, 10 Feb. 2000, available in LEXIS, News Library, CURNWS File.
128. See Six Days Later, supra note 114.
129. See Const, of Kenya ch. II, pt. III, § 26(3)(c). (The Constitution of Kenya permits the Attorney General to "discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by himself or another person or authority.")
130. See KENYA AT THE CROSSROADS, supra note 80, at 6.
131. See id.
132. See WILLY MUTUNGA, CONSTITUTION-MAKING FROM THE MIDDLE: CIVIL SOCIETY AND TRANSITION POLITICS IN KENYA 1992-1997 (1999) (describing a comprehensive and in-depth analysis of the contest for democratic reforms by civil society organizations and the intransigence of the Kenya government).
133. See ALAMIN MAZRUI, KAYAS OF DEPRIVATION, KAYAS OF BLOOD: VIOLENCE, ETHNICITY, AND THE STATE IN COASTAL KENYA (1997) [a Kenya Human Rights Commission publication); MUTUMA RUTEERE, DYING TO BE FREE: THE STRUGGLE FOR RIGHTS IN MWEA (2000) [a Kenya Human Rights Commission publication]; MUTUMA RUTEERE, MISSION TO REPRESS: TORTURE, ILLEGAL DETENTION, AND EXTRAJUDICIAL KILLINGS BY THE KENYAN POLICE (1998) [a Kenya Human Rights Commission publication]; AMNESTY INTERNATIONAL, TORTURE: COMPOUNDED BY THE DENIAL OF MEDICAL CARE (1995) (depicting catalogues of gross human rights violations by the Kenya government).
134. See ALAMIN MAZRUI, KAYAS OF DEPRIVATION, KAYAS OF BLOOD: VIOLENCE, ETHNICITY, AND THE STATE IN COASTAL KENYA (1997) [a Kenya Human Rights Commission publication); MUTUMA RUTEERE, DYING TO BE FREE: THE STRUGGLE FOR RIGHTS IN MWEA (2000) [a Kenya Human Rights Commission publication]; MUTUMA RUTEERE, MISSION TO REPRESS: TORTURE, ILLEGAL DETENTION, AND EXTRAJUDICIAL KILLINGS BY THE KENYAN POLICE (1998) [a Kenya Human Rights Commission publication]; AMNESTY INTERNATIONAL, TORTURE: COMPOUNDED BY THE DENIAL OF MEDICAL CARE (1995) (depicting catalogues of gross human rights violations by the Kenya government).
135. See ALAMIN MAZRUI, KAYAS OF DEPRIVATION, KAYAS OF BLOOD: VIOLENCE, ETHNICITY, AND THE STATE IN COASTAL KENYA (1997) [a Kenya Human Rights Commission publication); MUTUMA RUTEERE, DYING TO BE FREE: THE STRUGGLE FOR RIGHTS IN MWEA (2000) [a Kenya Human Rights Commission publication]; MUTUMA RUTEERE, MISSION TO REPRESS: TORTURE, ILLEGAL DETENTION, AND EXTRAJUDICIAL KILLINGS BY THE KENYAN POLICE (1998) [a Kenya Human Rights Commission publication]; AMNESTY INTERNATIONAL, TORTURE: COMPOUNDED BY THE DENIAL OF MEDICAL CARE (1995) (depicting catalogues of gross human rights violations by the Kenya government).
136. See ALAMIN MAZRUI, KAYAS OF DEPRIVATION, KAYAS OF BLOOD: VIOLENCE, ETHNICITY, AND THE STATE IN COASTAL KENYA (1997) [a Kenya Human Rights Commission publication); MUTUMA RUTEERE, DYING TO BE FREE: THE STRUGGLE FOR RIGHTS IN MWEA (2000) [a Kenya Human Rights Commission publication]; MUTUMA RUTEERE, MISSION TO REPRESS: TORTURE, ILLEGAL DETENTION, AND EXTRAJUDICIAL KILLINGS BY THE KENYAN POLICE (1998) [a Kenya Human Rights Commission publication]; AMNESTY INTERNATIONAL, TORTURE: COMPOUNDED BY THE DENIAL OF MEDICAL CARE (1995) (depicting catalogues of gross human rights violations by the Kenya government).