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After BBI judgement, eyes shift to the Judiciary's next big test

Supreme Court Judges during the reading of the BBI verdict at the Supreme Court building on March 31, 2022. [Collins Kweyu,Standard]

The decision by the Supreme Court on Thursday to stop President Uhuru Kenyatta’s constitution amendment initiative has affirmed the public’s confidence in the Judiciary, and put focus on Chief Justice Martha Koome as the August election comes into view.

The Supreme Court declared the changes proposed by Building Bridges Initiative (BBI) unconstitutional on the grounds that a sitting president could not promote amendments to the Constitution.

The court’s decision dealt a blow to Uhuru as well as ODM leader Raila Odinga who has spent significant effort pushing for the changes that were largely viewed as giving the President firmer control of his succession.

The decision came under a cloud as politicians and lawyers opposing the amendments questioned the court’s ability to give a judgement that would not pander to the executive.

But when it finally came after two months of waiting, justices Koome, Philomena Mwilu, Isaac Lenaola, Smokin Wanjala, William Ouko, Njoki Ndung’u and Mohammed Ibrahim largely agreed with the view of the High Court and Court of Appeal.

Presidential election petition

But the spotlight is only just landing on the Supreme Court. After the much-hailed BBI ruling, the attention diverts to the Koome’s next big task.

It is four months before Kenyans go to a hotly contested presidential election, which could eventually have to be decided by the courts, going by the last two elections.

After serving for two terms, President Kenyatta is constitutionally expected to retire. His deputy William Ruto and former prime minister Odinga have emerged as favourites to succeed him.

Uhuru, under Azimio la Umoja, has given his support to Raila much to the dismay of his deputy Ruto with whom he fell out in 2018.

That is one key factor driving the country to the 2022 election.

It has been up to the seven-judge bench to decide the last two elections.

In 2013, the former CJ Willy Mutunga led the supreme court in upholding the declaration of Uhuru as the winner of the March 4 presidential election, rejecting claims by Raila that the electoral process was riddled with malpractices.

In 2017, the former CJ David Maraga annulled Uhuru’s election and called for a new election to be held within 60 days.

The decision was unexpected, precedent-setting, and spoke to the independence and confidence of the Judiciary.

It, however, angered Uhuru who, in a rally soon after the judgment was given, vowed to ‘revisit’ the matter.

“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.”

Chief Justice Martha Koome during the reading of the BBI verdict at the Supreme court building on March 31, 2022. [Collins Kweyu, Standard]

That declaration kicked off a conflict with the Judiciary which became apparent in the stalemate over the appointment of judges and the judiciary’s complaints that it was being underfunded.

The executive has read malice in the judgements that have gone against it.

Other than the BBI, the courts have ruled against the government on the appointment of judges, the Huduma Namba project, the cooption of the Nairobi Metropolitan Director-General, Mohamed Badi into cabinet, executive order placing sections of the judiciary, tribunals, commissions and independent offices under the Attorney General’s office, the appointment of 129 board members and parastatal heads, the position of chief administrative secretary (CAS) and the transfer the Kenya Meat Commission to the Ministry of Defence.

By standing against the Executive, the Supreme Court has gained the confidence of a public who were eager to see which direction the court would rule.

With the August election in view, the judgement by Justice Koome and her bench is a boost to public confidence.

The judiciary, in ruling against Uhuru and Raila’s attempt to amend the Constitution, was also in a way ruling for its own preservation. The amendments proposed by the BBI task force created a position for a Judiciary ombudsman who would be appointed by the president.

Judges said it would usurp the powers of the Judicial Service Commission (JSC) to pick judges and judicial officers for the country’s courts and entrench executive control on the institution.

CJ Maraga said in 2020 that a president-appointed ombudsperson would increase the number of executive appointments from four to five and will thus entrench executive influence on Judiciary.

In a speech delivered on Madaraka Day last year, President Uhuru accused the Judiciary of testing Kenya’s constitutional limits.