POLITICS, THE MEDIA AND INDEPENDENCE OF THE JUDICIARY

:
A PERSONAL FOOTNOTE

4th ANNUAL ACME LECTURE ON MEDIA AND POLITICS IN AFRICA

Kampala, Uganda

November 08, 2017

Delivered by Dr. Willy Mutunga, 14th Chief Justice of Post- Independence Kenya
and the 1st President of the Supreme Court

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, University of Dar es Salaam, 1973-74 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, A Critique of the
Political Economy of Social Imperialism, which will be published soon, 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 co-founder I found a controversial young man. As
Issa Shivji’s argues “You can’t attain excellence if you’re 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 digital entrepreneur; and Eric
Chinje, head of the 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

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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 the 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,

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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 Commission 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 Idi
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.

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In the same edition of the Transition is carried Wanume Kibedi’s open letter to Idi
Amin after his resignation as foreign affairs minister and fleeing the country. The letter
reminds Idi Amin that he “specifically” demanded CJ Kiwanuka’s elimination. Indeed,
Idi Amin has attacked the CJ in a public rally a month earlier without naming him. Idi
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.” Idi Amin reversed this order through one of his military decrees giving
the military powers of arrest.

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 Idi 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 an 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 convoy 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, an 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 me to
their club with open arms. The swearing-in took place witnessed by the representatives

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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

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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 am 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 favour 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 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

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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 lenses 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,

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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

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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 the 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.

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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

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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

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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 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 op-ed 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

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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 to 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.

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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
market place 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 defenseless
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

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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

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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 ought 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.

And now as we turn to Q & A let me warn you in advance that serving and former
judicial officers still have powers in existence since feudal times to declare any space
where people gather a court; and proceed to cite people for contempt of court if need
be! While I know I cannot do it in Kenya (thanks to our progressive Constitution) I
believe I can find some jurisprudential hooks for it in Uganda. Please do not leave. This
is a joke I like to tell. Besides, I am a poor apology for one Black Mamba!

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