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Putting the brakes on executive power in Kenya

September 8, 2017

Civil society, the media and the judiciary are all playing roles in checking executive power in Kenya, analysts say, a trend made clear by the annulment of last month’s presidential election.

Kenya’s progressive 2010 Constitution protects the work and independence of all three sectors, yet they still have to withstand strong government pressures.

– Dynamic civil society –

“Kenya’s civil society is more robust and dynamic than many civil societies in the region and that very much comes out of the struggle for multiparty democracy in Kenya, the push to overturn a one-party state,” said Sarah Jackson, deputy director of Amnesty International’s regional office for East Africa.

In late 2007, when the country was plunged into the worst political-ethnic violence since independence in 1963, Kenyan human rights organisations meticulously documented the violence and its suspected perpetrators.

President Uhuru Kenyatta and his deputy William Ruto were indicted by the International Criminal Court (ICC), accused of orchestrating violence that killed at least 1,100 people. The charges were later dropped, but many Kenyan observers believe the two men blame human rights groups for putting them in the ICC prosecutor’s crosshairs.

The rift between the executive and civil society grew wider in 2013 when rights groups appealed to the Supreme Court in an ultimately futile effort to have Kenyatta’s first election victory overturned.

Since then Kenyatta’s government has made life tough for many of these organisations: the NGO Board, which regulates the sector and is part of the interior ministry, has put up bureaucratic hurdles since 2015, seen by many groups as efforts to intimidate and silence them.

Only last month, in the wake of the August presidential vote, the NGO Board tried to shut down both the Kenya Human Rights Commission (KHRC) and the Africa Centre for Open Governance (AfriCOG), as they weighed launching a Supreme Court challenge to the election.

– Unfiltered views –

From the election campaign to the vote itself and throughout the aftermath, Kenyans have been able to track the shifting fortunes of the 2017 elections live on television.

Kenya, with the most dynamic economy in East Africa, is home to a host of private media groups with the capacity to deploy teams of journalists, providing live coverage in a news sector that is among the most competitive on the continent.

“The advent of live coverage in Kenya means that the ordinary Kenyan is able to get news which has not been filtered or diluted,” said Dismas Mokua, a Kenyan political analyst.

“When the president is addressing the nation or any other politician, Kenyans can get the information and they can form an opinion.”

Non-traditional media is also a powerful force in the country, which has extensive internet access, widespread smartphone use and a vibrant social media landscape.

When police and tax officers turned up to search AfriCOG’s office after last month’s vote, several Kenyan news channels rushed to the scene, giving the activists a chance to state their case on live TV.

Yet as Jackson points out, the sector, like civil society, faces many challenges including “threats and harassment against Kenyan journalists” and a tendency to “self-censor”, with some broadcasters choosing not to report on the post-election protests, for example.

Kenyan media is also subject to both subtle and overt political pressures: the government can leverage power through the placing — or withholding — of state advertising and legal announcements, while the opposition publicly called for a boycott of the Nation Media Group and its NTV channel, accusing it of bias.

Ironically, the only channel to broadcast live the call for a boycott was NTV.

– Judges make a stand –

Long associated with corruption, Kenya’s judiciary has recently begun showing signs of independence.

The Supreme Court’s annulment of the presidential election is the most striking illustration, in a ruling which has echoed beyond Kenya, but it was not the first time the court had ruled against the government.

In February, judges reversed a government order shutting down the huge Dadaab refugee camp as “discriminatory and therefore unconstitutional”.

Kenya’s 2010 Constitution not only created the Supreme Court, but also put the appointment of its seven judges outside the power of the president.

But the checks and balances on power in Kenya are likely to be tested in the coming months.

In the wake of the election ruling, Kenyatta described the judiciary as “a problem” that needs fixing.

For Mokua, even though the constitution has given Kenya strong institutions, they still rely heavily on the “courage” of the individuals that head them.

Dispatches from AFP concerning freedom of information, censorship and news coverage in regions where independent media is under threat.