This archive report was first published on 24 May 2020.
Kenya's Senate Purge: A Lesson in the Law's Politicization ¶
On May 24, 2020, Senator Kipchumba Murkomen's tenure as Senate majority leader came to an abrupt end. In a move that sparked widespread debate, President Uhuru Kenyatta stripped Murkomen of his powers and privileges, leaving him to navigate the consequences of his public downfall.
As Murkomen and his supporters sought redress in the courts, they were met with a harsh reality: the law is not a neutral arbiter, but rather a reflection of the society's norms and values. In this case, the law was used as a tool to consolidate power and assert dominance over a perceived adversary.
Law scholars like Makau Mutua understand that the law is inherently politicized, serving as a means to organize, change, regulate, and preserve a society's basic civilization. This understanding is rooted in the concept of jurisprudence, which recognizes that the law is not a fixed or absolute entity, but rather a dynamic and context-dependent construct.
The law's politicization is evident in the way it is created and interpreted. In a democratic society, laws are made by the political branches of the state, with politicians and bureaucrats playing a significant role in shaping the legal landscape. This process is inherently subjective, with different stakeholders bringing their own biases and ideologies to the table.
As Mutua notes, the rule of law requires that courts be independent and impartial, but this does not mean that judges are immune to political influences. In fact, judges are often seen as political actors, with their decisions reflecting their own ideological leanings. This is evident in the way that judges like Justice Clarence Thomas in the United States often rule in accordance with their conservative ideology.
Ultimately, the law's politicization is a reflection of the broader societal dynamics at play. As Mutua argues, the law can be a shield or a sword, depending on the context and the interests of those involved. In the case of Senator Murkomen, the law was used as a tool to assert dominance and consolidate power, highlighting the need for a more nuanced understanding of the law's role in society.
