Nancy’s got a gun: Justice and impunity in Kenya

After ethnic violence following the 2007 elections, judicial reform has become a priority in Kenya [GALLO/GETTY]

Cambridge, MA – Women wielding guns rarely feature in the news in Kenya. But in the past few weeks, Nancy Baraza, Deputy Chairperson of the Supreme Court, bucked the trend – having pointed a gun at a security guard in an upscale mall in Nairobi. Although the international press has generally overlooked the case, its reverberations tell an interesting story of the state of social and political reform following the violence after the 2007 elections in Kenya – and point to some of the factors that merit attention in the run-up to the highly anticipated elections most likely to be scheduled for December 2012.

Judicial reform was to be a centrepiece for the reconstruction effort following the 2007 elections. The existing judiciary was crippled by rampant corruption, lack of independence and institutional lethargy. Baraza was appointed under this mantle of change. As the most senior female judge in the country’s history, she spoke to gender inequality concerns, as well as to the allegations of ethnic cronyism that had been levelled against senior judicial officials.

Although not openly articulated, her appointment is undoubtedly laced with some ethnic considerations. The prospect of a Kikuyu deputy chief justice serving under a Kikuyu chief justice so soon after an ethnically charged crisis was an uncomfortable one for many, but Baraza – a member of the Luhya minority – was likely meant to countervail such concerns by representing a major, but less politically powerful, group. In many ways, Baraza was supposed to represent the new Kenya – multiethnic, gender-positive, tough on crime and corruption and ready to guide the country towards an internationally significant election.

All of which makes her fall from grace more newsworthy. At a basic social level, her arrogance – pointing a gun at a lowly guard who was just doing her job – is the kind of elite privilege that contributed to and characterised the 2007 crisis; a sense of entitlement that leads politicians and senior government officials to operate outside the law and expect lower-level staff to simply fall in line. Baraza was upset that the security guard didn’t recognise her and requested ID; pointing her gun was the proverbial “do you know who I am?” in a country where poorer people with no access to television or even newspapers – not to mention an inclination to avoid any interactions with the judiciary – would have no idea who she was.

The Baraza situation thus places pressure on the chief justice under his declared intention to address the rampant judicial corruption and make the judiciary relevant. To his credit, he convened an internal investigation, but the reaction in Kenya is telling of the extent to which institutions still have to go in order to restore confidence in their systems. A functioning and legitimised judiciary will be critical to the success of the upcoming elections. Otherwise, individuals will not defer to the court’s decisions, and will challenge elections in the street – as in 2007.

As it stands, Kenyans are sceptical if not entirely unconvinced. Chief Justice Mutunga thus not only needs to run an independent and impartial investigation, but also a transparent one, as the socio-political capital would go a long way towards increasing public confidence in the forthcoming December poll.

The ethnic dimension also complicates the political calculations of major players who must appear tough on judicial excess but cannot risk disrupting the delicate existing balance, particularly in the shadow of the International Criminal Court processes already in play. Removing Baraza from office so close to the election, and after the Supreme Court on which she sits refused to hear the state’s petition for an election date review, may be interpreted as a punitive move. Baraza may have inadvertently opened the door for those who wish to alter the ethnic makeup of the Supreme Court in favour of certain ethno-political factions, and their protest may be difficult to silence so close to the next election.

Then there is the gender issue. Should the judiciary fire Baraza, who, simply by turning up to work every day, challenges many preconceptions about what Kenyan women can do? Would replacing her with another woman be enough to keep these concerns in check, or would it raise the greater concern that the deputy chief justice role should permanently be occupied by a woman? Does this mean that women will indefinitely be number two in the judiciary? Would this be interpreted as a call to arms by women, who make up 51 per cent of the country’s population?

There is something to be said, however, for stripping away all the extraneous concerns and addressing the simple question at hand. Baraza was carrying an illegal firearm that she brazenly waved in the face of an unarmed individual, who was conducting a routine procedure in her official capacity. This, in the context of the threat of al-Shabab attacks that led to the heightened security in the first place.

Her actions not only spat in the face of necessary security measures, but also violated basic notions of human dignity. What would have happened in the converse situation – what if the security guard had turned up at her office and (after miraculously evading security) waved a gun in Baraza’s face? There is a social justice argument to be made for ignoring the power and economic differentials that distinguish the two women and prosecuting Baraza to the full extent of the law, signalling the rebirth of a truly egalitarian Kenya.

Two factors – the extent to which reforms have taken root, and the legitimacy that key players are willing to accord the judiciary – will be the key determinants of the outcome of the next elections. Almost all other issues that are raised, including ethnicity or class, only matter insofar as institutions such as the judiciary are seen to operate above them. The executive and the legislature have already shown their hands. The handling of the Baraza debacle will be indicative of whether the judiciary is ready to keep them in check.

Nanjala Nyabola, a writer and political analyst, is currently a graduate student at Harvard Law School.