Already under severe criticism for his stance on new taxes and the brutal suppression by police of protests against the scheme, Kenya’s president William Ruto must now come to terms with yet another setback, this time from the courts. He had appointed a commission of inquiry to investigate the shocking death of hundreds of people in what has come to be called the Shakahola massacre. But a high court judge has now found Ruto acted unconstitutionally when he established the inquiry. Named for the village at the apparent epicentre of the cult whose preachings led to the mass suicides, the deaths at Shakahola have horrified Kenyans. Once the alleged master-mind was arrested, Ruto moved quickly to gazette an inquiry into what had happened, who was to blame and what could be done to prevent such a disaster in the future. Now, however, a court has found he acted unconstitutionally. Sections of a 1961 Commission of Inquiry Act, under which he purported to act, were also found to be unconstitutional and a relic of ‘the imperial presidency’ under which Kenya had been governed in the period before the present constitution.
Read judgment
There can be no doubt that Kenyans are deeply shocked, traumatised even, by the horrifying events at Shakahola. This is the village around which were found many bodies of the hundreds who died responding to a cult preacher’s urgings. Paul McKenzie Nthenge, whose preaching allegedly lies behind the mass starvations, has been arrested and is now in prison awaiting trial.
Soon after Nthenge’s arrest, Kenya’s president, William Ruto, gazetted a commission of inquiry into the events at Shakahola. Among other things, it was intended to find out what had happened, what should be done about the alleged perpetrators, why there was no outside response until so late, and how to prevent such a tragedy happening again.
Political rivals challenge presidential inquiry
Four days later, the Azimio political coalition party, a body headed by former president Raila Odinga, brought a challenge to the lawfulness of Ruto’s commission.
The argument, simply put, was that the constitution gives the right to institute commissions of inquiry to various bodies, but not to the president. For Ruto to set up an inquiry infringed on the constitutional mandate of these bodies, said Azimio. In addition, the Commission of Inquiry Act under which Ruto purported to act, was itself unconstitutional, Azimio claimed.
The judge hearing the matter, Lawrence Nthiga Mugambi, had first to decide whether Azimio could litigate against the president himself. No, the party could not, he said. Previous supreme court decisions had made clear that the president had immunity for acts ‘connected with the office and functions of that office’. Even when the action was in gross violation of the constitution, litigation against a president could be brought only after the president had left office.
For this reason, Azimio should not have joined the president as a party to its legal action. Litigation could, however, continue against the other parties, including the attorney general.
Police already have investigating powers under the constitution
What about Azimio’s claim that appointing a commission of inquiry was beyond Ruto’s remit? The court was more receptive to the argument that the president had gone beyond the scope of his authority in establishing the inquiry. This was because the mandate he gave to the inquiry in fact ‘belonged’ to other independent constitutional bodies.
For example, the national police service had an exclusive mandate to investigate crime, in this case, the deaths at Shakahola and the role of the alleged perpetrator. ‘It is not constitutionally viable to establish a commission of inquiry with parallel mandate of investigating offences of death committed in Shakahola as that is a specific mandate of the police,’ the judge wrote. The president had appropriated this mandate and his appointment of such a commission could thus not stand.
Likewise, the Kenya National Commission on Human Rights (KNCHR) was mandated by the constitution, to inquire into, receive and investigate complaints about alleged violations of human rights and torture. Again, these were issues that the president had said his commission of inquiry should investigate. In doing so, he ‘unilaterally seized the KNCHR’s explicit mandate and allocated it to a commission of inquiry he created.’
The president was supposed to respect the specific mandates given to independent commissions under the constitution, said Mugambi. He was not allowed to create ‘extra-constitutional bodies to undertake specific functions belonging to agencies created by the constitution.’ For the president to take away specific duties given to a constitutional body and hand them to an outfit of his own creation amounted to undermining those constitutional bodies, something he had no authority to do.
Was 1961 commissions law constitutional?
Next, the judge considered the Commissions of Inquiry Act under which Ruto set up the Shakahola inquiry. He said lawmakers who passed that legislation in 1961 acted in terms of ‘the experiences of the time’ and couldn’t have been ‘in tune with our constitutional values’ and the principles of Kenya’s 2010 constitution.
Did the section of the 1961 law under which the inquiry was established, ‘advance the values and principles’ of the constitution, he asked. Clearly not. For one thing, it gave the president ‘immeasurable prerogative powers’.
The present supreme law ‘radiates constitutionalism’, unlike the previous legal dispensation, and clearly embodied separation of powers, a bill of rights, checks and balances and other key principles. Among these, the president was entitled to exercise only those powers given to him; he couldn’t simply take over powers given to other arms or independent offices.
‘Relic of the imperial presidency’ of Kenya’s past
True, the president had consulted with the chief justice before appointing a sitting judge to head his Shakahola inquiry, but that consultation was for the sake of politeness, not because he was obliged to do so. Under the 1961 law, he could do as he pleased, and ‘there lies the threat to the principle of constitutional separation of powers and the independence of the judiciary’, Mugambi found.
These powers were a ‘vestige of the past unrestrained executive power … filtering to even the judicial arm.’ Judicial independence was diluted by the presidential powers embodied in the 1961 law because, among other things, it allowed him to appoint ‘whomsoever he pleases, including serving judges, to perform tasks within the executive branch.’
Such ‘movement back and forth between high-level executive and legislative positions and the judiciary’ was strongly disapproved in the Bangalore Principles on judicial conduct, and Mugambi found that the section of the law giving the president these powers was ‘a relic of the imperial presidency’ of Kenya’s past. It wasn’t ‘aligned with the current constitutional values and principles on separation of powers and independence of the judiciary’, and it was thus unconstitutional.
He formally declared the presidential decision to establish an inquiry into the Shakahola tragedy ‘unconstitutional, null and void’. Similarly, he declared that the section of the 1961 law giving the president ‘unrestrained’ power to appoint a serving judge to a commission of inquiry violated the separation of powers and threated judicial independence. It too, was unconstitutional, null and void.
Embattled president faced with growing protest movement
The landmark decision must be seen against Ruto’s increasingly embattled position. There’s a strong and growing protest movement across the country, most recently against Ruto’s announcement of controversial new tax hikes. Not only was he forced to withdraw the proposals because of public opposition to the hikes, but his position was further weakened because of outrage about the brutal way the police handled the protests.
Ruto responded dramatically to public anger over the tax increases and police brutality. He sacked virtually his whole cabinet and his attorney general, while the police chief resigned. Ruto also promised to start ‘immediate’ and ‘extensive’ consultations across political and other divisions, aimed at setting up a ‘broad-based government’. But with the growing push for more accountable government in Kenya, he can no longer take even his own position for granted.
Presumably, the contentious inquiry was intended to show prompt sensitivity to public outrage about the Shakahola deaths – but a court finding that he had acted unconstitutionally and that he used the outdated powers of an ‘imperial presidency’, won’t win him any friends or strengthen his position. Nor will the fact that this successful case was brought against him by a rival political grouping, one that is now being called in to help quell angry protests.