And Then There Were None

Brenda Wambui
5 April ,2016

The evolution of man has seen us explore various ways of existing – from hunting and gathering to feudalism, to capitalism as supported by democracy, which is where we currently linger, wondering what comes next, because this no longer seems to be working. According to Thomas Hobbes in Leviathan, we are first and foremost concerned with our survival, thus making the first law of nature self-preservation. The second law is to do unto others as you would have them do unto you.

This forms the basis of the social contract, where he concludes that it is rational for human beings to give up some liberty in order to gain the security of self-preservation. In the modern world, this security is provided by the state.  There is a mutual transference implied here: citizens of the state give up some of their natural right and live under a prescribed framework in return for security/self-preservation. The prevailing system for this is the democracy, which is built upon social contract theory (government of the people, by the people, for the people). Democracy can be thought of as freedom institutionalized – defined and enforced.

To this end, we have the arms of government: the legislature to represent the people and make the law, the executive to administer it, and the judiciary to adjudicate and interpret the law. In Kenya, the legislature and executive have long been known to be corrupt, but recently, we have learned that this rot is extensive in the judiciary as well. In January 2016, it was reported:

The Judiciary was yesterday jolted by claims that a senior judge received money to influence a case at the highest court in the land Justice Tunoi is alleged to have received two million dollars (Sh200 million) in order to influence an election petition against Nairobi Governor Evans Kidero, filed by election challenger Ferdinand Waititu.

In February, additional reports surfaced that stated:

In a tweet on Saturday, senior counsel Ahmednasir Abdullahi called the Supreme Court’s integrity into question, when he claimed that more judges of the highest court in the land may have benefited from the alleged bribe. Abdullahi said via Twitter on Saturday evening that the bribe “is not $2million (Sh200m). It is about $3m (Sh300m)”. He further claimed that Sh200 million was for four judges, whereby two were paid separately.

It is worth noting that Kenya’s Supreme Court consists of a bench of seven: a Chief Justice, a Deputy Chief Justice and five other judges. If Ahmednasir’s claims are true, then the Supreme Court, the greatest court in our state, is deeply tainted by corruption as more than half of its judges have taken bribes.

Just this week, the Deputy Chief Justice, Kalpana Rawal, was named in what is currently the largest leak of confidential documents, the Panama Papers, as a power player dodging tax obligations through the use of tax havens. The papers say:

Rawal and her husband were directors of two companies based in the British Virgin Islands, prior to her joining the nation’s Supreme Court. The family used other offshore companies to buy and sell real estate in London and nearby Surrey. Montague Real Estate SA was used in 2004 to buy a London flat for $1.12 million, which they sold in 2006. Innovate Global Limited was used to buy a house in Surrey for $2.74 million and a London apartment which they bought for $967,000 in 2004 and sold for $1.62 million in 2013. Through Arklyn International Limited, they bought another two London apartments, one bought for $1.66 million in 2005 and sold for $2.23 million in 2011, and the other bought for $1.57 million in 2005 and sold for $2.15 million in 2012.

This comes after our Chief Justice, Willy Mutunga, who is about to retire, characterized Kenya as being a bandit economy. Whoever is fighting this battle against Kenya’s institutions/government is surely winning, because if even the courts, which as recently as 2013 had to decide the outcome of a general election petition can be corrupt, then who in power isn’t? Where can Kenyans turn? Who can be believed? How do we fix our country? Or is David Ndii correct when he says that Kenya is a cruel marriage, and it’s time we talked divorce? Because our state is clearly not delivering on its end of the social contract, and we may just be in it because of duress, or nostalgia.

The state of our judiciary, and indeed our other arms of government, leaves me with many questions. Are the Kenyan people really sovereign? Do we really consent the government of those in power? Is what happens in Kenya majority rule – is this what most people want? Do people who are not part of this majority have protected and guaranteed rights? Is everyone in Kenya entitled to basic human rights? Are we equal before the law, or are some people more equal than others as in Animal Farm? Are our elections free and fair – can our judiciary guarantee this? Are we guaranteed due process when senior-most members of our judiciary are implicated in corruption when they are supposed to be beyond reproach? Are we moving back into the 1990s when we had an almost totalitarian state? If we are unable to answer all these questions in the affirmative, then we have a major problem. Perhaps it’s time we rethought our social contract.

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