Rivalry between three arms of Government escalates as president Uhuru Kenyatta weighs in

NAIROBI, KENYA: The rivalry between the three arms of Government whose powers were significantly boosted by the new Constitution has escalated, particularly now that the President, who heads the Executive, and the Chief Justice have directly responded to each other by defending their turfs.

The crux of the matter, as the Legislature entered the mix to fight for its space, even summoning Cabinet secretaries Tuesday following amendments reversing the earlier decree against this, is the doctrine of separation of powers that gives distinct autonomy to the three arms of Government.

President Kenyatta expressed concern that some court orders were disrupting the smooth operation of Government during an address to a regional gathering of judges and magistrates in Nairobi Tuesday.

At one point, the President turned to address Chief Justice Willy Mutunga, saying in Kiswahili:"Mimi siogopi kutaja hiyo." (I am not afraid to raise this matter).

He went on: "These orders, especially ex parte orders (given by a judge without all parties being present in court), lazima uangalie hiyo mambo (you must re-examine the orders)."

Uhuru spoke on a day two Cabinet secretaries were found to have left Parliament when their turn to face the National Assembly came, infuriating MPs who linked the development to earlier communication from his Chief of Staff Joseph Kinyua objecting to their appearance.

Senators, too, are furious with the Judiciary after a High Court order retrained the Senate from considering the impeachment of Governor Kivutha Kibwana by the Makueni County Assembly.

STRAINED RELATIONS

The development poured cold water on efforts by the CJ and Senate Speaker Ekwe Ethuro to hammer out a truce after relations were strained by the court's action to reinstate Embu Governor Martin Wambora, who was impeached by the Senate, and to cushion governors against Senate summonses.

The supremacy war between the National Assembly and the Senate at one point ended up in the Supreme Court; Parliament was left with a bill of Sh55 million in legal fees.

President Kenyatta told the Judiciary to review some court orders, which he argued had made it impossible for other arms of Government to effectively perform their functions.

Opening this year's East African Magistrates and Judges Association's (EAMJA) Annual General Conference in Nairobi, the President said the courts "share the same constitutional burden" as the other arms and could not work in isolation.

"Mutual respect, humility, communication and an eye on the pursuit of the greater common good constitute the grease that oils the three indispensable cogs of the engine of State, allowing for each to turn smoothly and work together without friction," Uhuru argued.

The CJ had spoken before the Head of State and had not addressed the matter, but had defended orders issued by the courts on Monday as reports swirled about how some top officials had disregarded a court order on disputed land in Karen.

"Disobedience of court orders is tantamount to overthrowing the Constitution and the consequent onset of utter lawlessness in our country," Mutunga tweeted on Monday.

Tuesday, Interior Cabinet Secretary Joseph ole Lenku and his Education counterpart Jacob Kaimenyi were nowhere to be found when parliamentary orderlies went to call them to face the new Committee on General Oversight.

The two had confirmed attendance and had earlier been in the office of the Majority Leader within Parliament Buildings waiting for their turn after Lands Cabinet Secretary Charity Ngilu, who went in first.

In the afternoon, furious MPs condemned Kinyua, Attorney General Githu Muigai and the chairman of the Commission for the Implementation of the Constitution, Charles Nyachae, accusing them of misleading Cabinet secretaries not to appear before the committee of all MPs on grounds it was unconstitutional.

The AG has stood his ground that Cabinet secretaries, who are not Members of Parliament, cannot appear in the House and had told Speaker Justin Muturi as much in a letter explaining why that development was offensive to the Constitution.

In the letter, Prof Muigai argued if the MPs wanted Cabinet secretaries in the House, then they better amend the Constitution to "reconfigure the structure and membership of the Houses".

Apparently, it is that legal advice that Kinyua, in a letter to Muturi dated October 10, banked on to communicate that the Executive was reluctant about the trend and that "Cabinet secretaries will await further direction at the conclusion of the deliberations aforementioned".

"As you are aware, this matter has raised grave and weighty constitutional issues with regard to the architecture of the State. The Attorney General, the Commission for the Implementation of the Constitution and the Legal Affairs Office at the Presidency have all raised red flags," Kinyua wrote to the National Assembly.

In response, Muturi sent out a statement to the media on Monday evening insisting three Cabinet secretaries would have to appear before the Committee on General Oversight.

Muturi said decisions on which committee to form or who was to appear before which one belonged purely to the rules and procedures of the House.

The National Assembly amended its Standing Orders to allow Cabinet secretaries to appear before the House to respond to questions raised by members, he added.

Much earlier, the Speaker and the AG had exchanged terse correspondences about the MPs' move on Uhuru's Cabinet.

Muigai insisted that if Cabinet secretaries were allowed to "participate in the ordinary business of Parliament" then it will "blur the constitutional doctrine of separation of powers".

"It is instructive to note that the ministerial responsibility towards Parliament may either be executed in writing or through oral narrative. A Cabinet secretary may choose to respond to a committee in writing unless otherwise required to appear in person," Muigai noted in his explicit letter to Muturi.

"Under the Constitution, the duty of advancing Government before the plenary of the Houses is squarely placed upon the Leader of Majority or Minority parties, as the case may be, who are constitutional functionaries established under Article 108," argued Muigai.

RESOLVE STANDOFF

To appease the Senate, before the latest order on Kibwana escalated the conflict, Mutunga had invited senators to a meeting with judges to resolve the standoff.

That was in a letter responding to another by Senate Speaker Ekwe Ethuro who had protested alleged judicial interference in the work of Parliament.

"I invite the Senate, through your Honourable Mr Speaker, to have a workshop with the judges to discuss the issues you eloquently articulate in your letter," the CJ said in his response to the Speaker.

Mr Ethuro, in his letter dated September 4, had accused the Judiciary of placing roadblocks in the implementation of their decisions.