What the Kenyan courts are “saying” about institutionalism in Africa
By Fidel Amakye Owusu
1. Weeks back, I was intrigued about Kenya’s interest in supporting the stabilization efforts in the Caribbean state of Haiti. With what I saw to be limited consequential relations between the continent and the Caribbean, Nairobi’s decision came as positive news.
2. This notwithstanding, an appreciation of the tumult in Haiti suggests a herculean and dangerous task for any force that seeks to intervene. Over 80% of the country is under the control of gangs and vigilantes.
3. I have maintained that the Haitian situation has “no easy out” despite Kenya’s positive intentions. The one-thousand-strong force Kenya seeks to send to the country is, however, necessary to mitigate a worsening humanitarian and security situation.
4. And so what?
5. Despite the goodwill Kenya has shown in sending a stabilization force to Haiti, the constitutionality of President Ruto’s decision is being tested in the country’s courts. A private citizen and politician challenged the decision in Kenya’s High Court.
6. The court subsequently blocked the move until its rules on the issue on November 9, 2023. The new date was an extension of an earlier one given by the court. While the substance of the matter may need further interrogation, the decision by an African court to halt a presidential decision speaks a lot about institutionalism in the East African state.
7. How?
8. While many African countries have made significant efforts towards democratic transformation, especially in the first couple of decades after the Cold War, far less has been achieved in terms of institutionalism. The independence and autonomy of institutions have almost always been in question.
9. In many countries, major institutions have been under the unbearable influence of the executive or central authority. Parastatals and other organs of the state are often subject to the whims and caprices of the few powerful people in government.
10. Even for the courts whose raison d’etre cannot be achieved without their independence, there is an overwhelming influence on how they operate. In recent times, the opposition, academics, and a retired apex court judge have bemoaned how the current government of Ghana is manipulating the judiciary to its advantage.
11. In some countries ruled by strongmen who have had long stays in power and have appointed almost every senior judge in the judiciary, court rulings hardly go against the wishes of governments. Judges who depend on the executive for promotions avoid “stepping on toes” with justice delivery.
12. Yes, the court may delay and even stop the deployment of Kenyan forces in Haiti; however, the autonomy and procedural manner in which it does it, depicts the independence of a vital institution. This is good for democratic governance.
By Fidel Amakye Owusu – International Relations and Security Analyst and Writer
Article Reproduced with Permission from Fidel Amakye Owusu
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