A light of impartial justice

A Kenya court ruling against a president marks a welcome triumph for judicial independence in Africa and elsewhere.

Kenya's President Uhuru Kenyatta (R) talks to opposition leader Raila Odinga at a March 12 political conference which endorsed Odinga as a presidential candidate for this year's general elections.

In one of the world’s most unstable regions, the global drift toward authoritarianism has hit a wall, one draped in the red and black of judicial robes. Kenya’s Supreme Court ruled this week against President Uhuru Kenyatta, who had proposed constitutional changes that might have enabled him to remain influential in a new office.

The decision, on what was essentially a procedural question of executive power, illustrates how young societies – particularly those emerging from colonial pasts – develop the rule of law: not by inheriting systems of government, but through a deepening conviction in the moral foundations of equal liberty protected by an independent and impartial judiciary.

The decision will not only resonate in Africa, where rulers find it easy to manipulate the law to stay in power, but perhaps around the world. In its latest survey, Freedom House found that 60 countries saw a decline on key aspects of democracy. The trend has left only 20% of the global population living in what the survey calls “free” countries. In Africa, notes Leiden University law professor Nick Huls, even though all 54 countries have a written constitution, “a culture of constitutionalism is often missing.” Earlier gains in judicial independence on the continent have lately been in retreat.

During Kenya’s first 40 years of independence, as Chief Justice Martha Koome noted, the first two presidents pushed through 30 constitutional amendments to concentrate and perpetuate their power. That remains a common tactic in Africa. It is how Uganda’s President Yoweri Museveni extended his 36-year grip on power last year.

Kenya has shed that tendency gradually as its citizens have demanded better governance. A three-year process culminating in the new 2010 constitution was widely inclusive. The new document rebalanced power among the branches of government and entrenched the rights of women and marginalized communities. By 2020, 88% of Kenyans agreed that government must always follow the law and 74% said presidents must respect court decisions, according to the polling group Afrobarometer.

The court’s decision on March 31 related to a presidential push for a constitutional amendment to create a new office of prime minister side by side with the presidency. Critics saw this as an attempt by Mr. Kenyatta, who cannot seek a third term later this year, to retain power and weaken political opposition. The Supreme Court ruling upheld two lower court decisions that found he had introduced the amendment unconstitutionally. The decision marked the second time the court has flexed its independence under the new constitution. In 2017 it annulled the presidential election, citing widespread discrepancies, and ordered that it be held again.

Justice Njoki Ndung’u, who dissented in the court’s interpretation of how the constitution allows for amendments, nonetheless observed, “Kenyans wanted to have a head of state who would not whimsically amend the constitution.”

Significantly, Mr. Kenyatta did not oppose the ruling in 2017. Nor has he now. At a turbulent moment globally, Kenya has reaffirmed judicial independence. More than a check on the actions of a president, it sends a timely message about democratic rule of law that restrains personal power and ensures self-governance.

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