Kenya: Bad blood between executive & judiciary worries Kenyans

By Jeff Otieno
Posted on Thursday, 4 November 2021 18:16

Kenya supreme court
A fountain with a statue is seen outside the Supreme Court in Nairobi, Kenya, August 20, 2021. REUTERS/Monicah Mwangi

The bad blood between Kenya's executive and judiciary is no longer a secret. However, many Kenyans worry that the deep-seated rivalry between these two arms of government might plunge the country into a constitutional crisis if left unchecked.

In 2017, the Supreme Court cut short celebrations by Jubilee party supporters when it declared Uhuru Kenyatta’s win – in the August presidential election – null and void.

The decision angered Kenyatta, who vowed to ‘fix’ the country’s judiciary if re-elected in the repeat poll that was ordered by the apex court.

“We shall revisit this thing. We clearly have a problem. Who even elected you? We have a problem and we must fix it,” he said. “The Supreme Court sat and decided that they are the ones with a bigger power than the 15 million Kenyans who woke up, queued […] and voted for their preferred presidential candidate. […]”

Responding to Kenyatta’s criticism, David Maraga, the then chief justice and president of the Supreme Court, said leaders who were tired of the independence of the judiciary should call a referendum to abolish it altogether.

Since then, the relationship between the judiciary and the executive has never been the same.

Executive interference

On numerous occasions, Maraga accused the executive of interfering with the independence of the judiciary. The executive, on the other hand, pointed a finger at the judiciary, accusing it of sabotaging government programmes through biased court judgements.

We are either a nation governed by the rule of law and the principle of constitutionalism, or we are a jungle republic.

In November last year, a few weeks before his retirement, Maraga launched a scathing attack on President Kenyatta for disobeying court orders and ignoring important provisions of the constitution. He also accused the executive of failing to grant the judiciary financial autonomy.

“It is clear there is a difference of opinion between me and you (President Kenyatta). It is on record the president threatened to ‘revisit’ and the following financial year we saw a reduction of the development vote of the judiciary budget from KSh2.1bn ($8.9m) to a paltry KSh50m ($449,438). We are either a nation governed by the rule of law and the principle of constitutionalism or we are a jungle republic,” Maraga said during the launch of the ‘Judiciary and Administration of Justice Report’ for the year 2019-2020.

Though expected to turn up for the function, President Kenyatta gave it a wide berth, instead opting to attend to other duties at State House.

Sabotage by the judiciary

However, Maraga’s criticism did not go unnoticed. The president would later ask the judiciary to live within its budget, saying the numerous court injunctions had stalled government programmes, which would have created jobs for millions of Kenyans and increased revenue collection.

“Many of our programmes have been routinely suspended with implementation delayed for months and even years while pending adjudication in courts. The unintended consequences in the form of injunctions is that it compromises the efficacy of the state to create more jobs and opportunities for our people in a competitive world,” he said.

According to the head of state, the independence of the judiciary exists for the benefit of Kenyans, and public interest should always be considered when making court decisions.

Amidst the back and forth between Kenyatta and Maraga, the government lost numerous cases in court. Some of them involved multi-million-shilling programmes, which the president had identified as his legacy projects.

Cases lost by the government

Below is a list of some of the rulings against the executive.

  • 21 October 2021: The High Court gives the president 14 days to appoint six judges, who he had declined to promote, citing integrity issues. The Court of Appeal has since suspended the order pending hearing.
  • 14 October 2021: The multibillion Huduma Namba project (a biometric mass registration system for collecting biometric data from citizens and residents) is declared illegal for being in conflict with the Data Protection Act of 2019. The government has already filed a notice of appeal.
  • 23 September 2021. The appointment of Nairobi Metropolitan Director General, Mohamed Badi, into cabinet meetings is quashed. The High Court terms the executive order issued by the president as illegal.
  • 20 August 2021: The Court of Appeal declares the Building Bridges Initiative (BBI) –  a brainchild of President Kenyatta and Raila Odinga, leader of the Orange democratic Movement (ODM), to change some sections of the constitution – unconstitutional, null and void. The government has already appealed the ruling at the Supreme Court.
  • 10 June 2021: President Kenyatta’s executive order placing sections of the judiciary, tribunals, commissions and independent offices under the Attorney General’s office is declared unconstitutional.
  • 27 May 2021: The appointment of 129 board members and parastatal heads by the president is quashed, termed as illegal, lacking transparency and competitiveness.
  • 20 April 2021: The position of chief administrative secretary (CAS), which was created by the president, is declared unconstitutional. The court says the 29 CASs were appointed illegally.
  • 15 February 2021: The move to transfer the Kenya Meat Commission to the ministry of defence, as ordered by President Kenyatta, is declared illegal for lack of public participation.

Dysfunctionality in government

According to lawyer Duncan Okach, some of the decisions made by the court were not a surprise.

“We should call a spade a spade. There is dysfunctionality in government and it is visible. The rulings made by the court speak for themselves. The problem is that the decisions have become so common, to the extent that it is now a norm,” says Okach.

It is just that the cheese has moved and the mouse does not seem to know what has happened.

Lawyer Martin Oloo concurs, saying the government needs to reexamine itself in view of the cases lost in court, and quickly change how it operates.

“I don’t think that the government goes out of his way to break the law or behave unconstitutionally. It is just that the cheese has moved and the mouse does not seem to know what has happened. The government should know that things changed in view of the new constitution,” says Oloo.

The lawyer argues that the executive needs to understand that the judiciary is now emboldened and has new instruments under the 2010 constitution which it has to  apply without exception.

Judicial activism

However, some legislators and lawyers disagree, accusing the judiciary of overreaching.

“The courts should go slow on everything that touches on the government because if you are going to say everything is illegal, then we will not go far as a country,” says legislator Rahim Dawood, in reference to the court’s judgement on the Huduma Namba project.

Lawyer Paul Mwangi, an advisor of Raila, accuses retired Chief Justice Willy Mutunga of entrenching activism in the judiciary when he was at the helm, between 2011 and 2016.

“Mutunga the activist became Mutunga the chief justice. Did he pursue [this] activist agenda when he was the chief justice, and to what effect on the independence of the judiciary? My answer is yes, and he left a judiciary captured by the civil society,” Mwangi told the Sunday Nation in May, after the High Court declared the BBI unconstitutional.

We will petition […] the judges of the Court of Appeal to down their tools in solidarity with their six colleagues that the president has refused to appoint on flimsy grounds […]

In his response, Mutunga said he does not mind being labelled an activist, as Kenya’s constitution is a progressive document. In fact, last month, he stirred up a hornet’s nest when he urged judges to down their tools to compel the executive to obey court orders and rule of law.

“We will petition that the judges of the Court of Appeal to down their tools in solidarity with their six colleagues that the president has refused to appoint on flimsy grounds, until such a point that the president appoints the six judges,” he said, adding that Kenya had witnessed rampant acts of impunity and lack of respect for the constitution.

Dismemberment of the constitution

However, Mutunga’s comments did not go down well with Martha Koome, the current chief justice. In a swift rejoinder, Koome termed the remarks as incitement meant to disrupt access to justice for Kenyans.

“The implications of calling for a judicial strike are far reaching. It is in part calling for suspension or dismemberment of the constitution by excluding one arm of government from the constitutional operations of our democratic state,” she said.

She reminded the former chief justice that during his tenure, he disapproved of scenarios that called on judges to down their tools, adding that it was regrettable that Mutunga had now changed tune.

What is happening […] is symptomatic of a deep problem that shows we do not understand the nature of our constitution.

So how can the bad blood between the executive and the judiciary be sorted out to ensure the country is not plunged into a constitutional crisis?

“Maybe we should call a meeting as a country and perhaps fault ourselves for passing a constitution we do not understand. What is happening in the county assemblies, parliament and executive is symptomatic of a deep problem that shows we do not understand the nature of our constitution,” says Oloo.

He adds that though the judiciary has done a good job in defending the constitution, it also cannot escape blame.

“There are decisions made by the judiciary that cannot go unchallenged. For example, barring General Badi (Nairobi Metropolitan Director General) from sitting in the cabinet. I think that is overreaching. The president can invite anybody to sit in his cabinet to advise him.”

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