Can Kenya’s Judiciary Bear the Burden of National Elections?

The Honorable Willy Mutunga

The Honorable Willy Mutunga (Photo credit: Ford-Foundation)

With Presidential elections looming on March 4th, 2013, Kenya is in the spotlight of the international community. After the eruption of violence following the December 2007 elections, immense international pressure is being placed on Kenya to carry out free and fair elections this time around. The 2007 elections resulted in over 1,100 deaths and 600,000 Internally Displace Persons. Moreover, a peace agreement was only reached as a result of the mediation efforts led by Kofi Annan between Kabaki (sitting President and alleged victor of the election) and Odinga (opposition candidate alleging falsified elections results) through the disillusion of the constitution and the creation of a coalition government in which Kabaki became the President and Odinga became the Prime Minister.

In the four years since the last presidential elections, Kenya has worked to create the preconditions for democratic elections this time around. The constitution has been rewritten, alternative dispute resolution mechanisms have been indoctrinated into political processes, the judiciary was recreated, and the public was educated on the topics of democracy and the independence of the judiciary. But is this enough?

This past September, I had the pleasure of hearing Kenyan Chief Justice Willy Mutunga speak in Washington, D.C. He spoke of the restructuring of the Kenyan judiciary and the ways in which this new system will counter impunity and be able to act as the impartial voice on issues of contention. The changes that have been made thus far are noteworthy – judges have been vetted and retrained, the judiciary has been granted full independence from the other branches of government, and set of specific mechanisms has been developed for dealing with the ‘hot-topic issues’: land ownership and election dispute. However, even when speaking to the successes of the Kenyan judiciary, there was a note of uncertainty in Mutunga’s voice. He never came out and said it, but it was evident that he to was wondering if enough had been done and that if the Kenyan judiciary, in its infancy, would be able to handle the stress of a national election.

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In recent weeks, this uncertainty has begun to take form, as Mutunga received threats  regarding the decision the Kenyan court to permit Kenyatta and his running mate (both indictees to the ICC) to have the capacity to run for President. He is not the only person to be receiving such threats. A letter has been circulation among judges and ambassadors saying that if Kenyatta is not permitted to participate in the election the judges and ambassadors should “buy their own coffins and graves”.  Threat like these make one question whether the Kenya court system will be able to withstand the pressure of the Presidentialelection, or whether it will, once again, fall to corruption.

Such a turn to corruption would be a tremendous disappointment given all the work Mutunga has put in to foster the development of a culture of democracy and separation so judiciary in Kenya. Mutunga and other judges have, in the past six months, taken to thestreets of Kenya to inform the public about the working of the court system and how it provides a mechanism for conflict resolution without the need to resort to violence. Mutunga continues to appeal to Kenyans, calling for peaceful elections, arguing that holding a peaceful vote is the only way forward for Kenya.

Given the pressure by the international community and the vast structural changes in the Kenya judiciary since the last election, I am cautiously hopeful that the elections will be peaceful – that is without the escalationof violence to the same level as the last election. That being said, frustrations and animosities are undoubtedly apparent, leaving ambiguity as to what the result will be in actuality. So at the present moment, the world continues to hold its breath as Kenya moves one days closer to elections.

Links about 2007 violence and fears of violence for this election can be found on PeaceMedia:

http://peacemedia.usip.org/resource/kenya-look-post-election-violence

http://peacemedia.usip.org/resource/fears-violence-kenya-prepares-p…

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