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Human Rights Quarterly 23.1 (2001) 96-118

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Justice Under Siege: The Rule of Law and Judicial Subservience in Kenya

Makau Mutua

I. Introduction

Constitutionalism and the rule of law are the central features of any political democracy that respects human rights. An independent judiciary, the essential guardian of the rule of law, is the linchpin of the scheme of checks and balances through which the separation of powers is assured. 1 Otherwise, there is no other guarantee that the executive--the "government"--will respect the rule of law and act within established legal norms, [End Page 96] processes, and institutions. The constitution is thus not merely hortatory but the fundamental and supreme law of the land, the real and living document that guides, defines, and permits all actions by the state. No individual or official of the state is above the law or can act in defiance of constitutional prescriptions. This is what separates democratic states from undemocratic ones. It is the difference between tyranny and freedom.

Since its creation by the British in 1895, the Kenyan state has undergone two significant transformations, both marked by illiberalism and massive human rights violations. Little need be said of the colonial state that was specifically organized for the purposes of political repression to facilitate economic exploitation. In 1963, Kenya formally became an independent, sovereign state, ending decades of direct British colonial rule. 2 Kenya's postindependence history, however, has been marked by sharp contradictions between the state and civil society in spite of its image, cultivated in the West during the Cold War, that the east African state was the beacon of hope for Africa. Not even the reintroduction of multipartyism in 1991 nor the two contested presidential and parliamentary elections in 1992 and 1997 have brought relief from state-directed human rights violations, an abomination that has become the trademark of the Nairobi government.

Kenya's 1963 independence Constitution provided for a multiparty democracy, a freely elected bicameral Parliament, and guaranteed judicial independence. 3 In spite of the liberal Constitution, the post-colonial state was autocratic at its inception because it wholly inherited the laws, culture, and practices of the colonial state. In 1964, Daniel Toroitich Arap Moi, President of Kenya since 1978, voluntarily dissolved the opposition party, the Kenya African Democratic Union (KADU). He then joined the ruling Kenya African National Union (KANU), headed by the nation's first African head of state, the late Mzee Jomo Kenyatta. The "merger made Kenya a de facto one party state and paved the way for a despotic executive." 4

In the absence of any legalized and official opposition and despite the Constitution's allowance of parliamentary democracy, President Kenyatta quickly created a highly centralized, authoritarian republic, reminiscent of the colonial state. Although Oginga Odinga, then Vice President, broke ranks to form the opposition Kenya Peoples' Union (KPU), President Kenyatta outlawed it in 1969 and detained all its principal leaders. 5 Upon [End Page 97] President Kenyatta's death, Vice President Moi succeeded to the presidency in 1978. Insecure at first, President Moi quickly took a number of important measures to consolidate personal rule. The net effect of these measures was to heighten repression and dramatically curtail all freedoms. Mismanagement, official corruption, and graft skyrocketed. The national economy has since spiraled into a precipitous decline. 6

In June 1982, after popular calls for an open political system, President Moi pushed a constitutional amendment through the single party Parliament making Kenya a de jure one-party state. 7 Several months later, an aborted coup by a section of the Kenyan Air Force spurred President Moi to crush all dissent and concentrate all power into his hands. From then on, President Moi worked to perfect the repressive state crafted by President Kenyatta. Through the government and KANU, he exercised extensive and deep control over civic groups, trade unions, the press, the Parliament, and most critically, the judiciary. Political murder, detention without trial, arbitrary arrests and detentions, false and politically motivated charges of opponents, both real and imagined, became the business...


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