Kenya at a crossroads
18 December 2014 by Tony Fisher
I spent last week in Nairobi with a charity called Peace Brigades International as part of a delegation of lawyers who form part of what is known as the Alliance for Lawyers at Risk. This is a group of UK lawyers and judges who make themselves available to help the legal profession in other countries where they are seen to be under threat. As well as myself, the delegation included Lord Scott, a former Law Lord, and Mark Cunningham QC.
Kenya has been independent now for half a century but like many East African countries is still struggling to find a sustainable way of establishing a robust democratic system which has universal respect for the rule of law. After decades of repressive government, huge tribal violence broke out after the 2007 elections, which led to a fundamental review of its constitutional arrangements. In 2010 a new constitution was adopted by referendum and since then the institutions of government have undergone substantial change. The judiciary is now appointed through a fairly transparent and independent process. Existing judges were carefully vetted to ensure that they were not tainted with bias or corruption, and an independent prosecution service has been established. The constitution is one of the most liberal and carefully crafted in the world, and sets the bar very high in terms of the proposed protection of fundamental civil and political rights, as well as cultural, and economic rights. It contains a strong bill of rights and many checks and balances to try and secure that the old bad ways are controlled.
During our stay we had meetings with people from all corners of the political and judicial spectrum and also met many members of a very vocal civil society which operates within Kenya. Interviewees included the Chief Justice, the Deputy Chief Justice, various other senior judges as well as government officers such as the Attorney General, and senior police commanders. The overall picture did provide some hope for better times ahead, but it is clear that police impunity, corruption and poverty are still impacting severely on the attempts to modernise the country and introduce an enlightened and sustainable political system which has due respect for the separation of powers between the President, the Executive, parliament and the judiciary. The social and economic problems faced by the vast majority of the population are vast and intractable. 60% of the population of Nairobi still live in slums, and allegations against the security forces include torture, severe violence against women and extra judicial killings. Holding the security forces to account is a major challenge.
At present the direction of travel is positive and there is a great deal of enthusiasm and support for the Constitution from civil society and the judiciary. Whether that direction can be maintained however depends on the willingness of those who are restrained by it to continue to respect the Constitution and work with the new institutions to strengthen respect for the rule of law. There are good signs and there are bad signs. We can only hope that the positive factors prevail.