Real motives of Ruto's verbal war on Judiciary

President William Ruto during an interview at his Karen residence on June 24, 2021. [Denish Ochieng, Standard]

When the Supreme Court led by former Chief Justice David Maraga nullified the 2017 presidential election, it sent shock waves across the country and Africa.

The Judiciary which had for decades been under the control of the Executive firmly exercised its dependence and affirmed the progressive 2010 Constitution.

“Previous regimes ran it as a branch of the Executive and it's from that experience that Kenyans eventually clamoured for change in the institution because it was to a very great extent, the weakest arm of government,” says constitutional lawyer, Bobby Mkangi.

Empowered by the 2010 Constitution and under the leadership of former Chief Justice Willy Mutunga, the Judiciary began making bold decisions.

This led to key judgments, notably the declaration of the "Building Bridges Initiative (BBI)" - born out of the collaboration between former President Uhuru Kenyatta and Raila Odinga -  unconstitutional.

However, these bold decisions by judges haven’t gone down without creating enemies.

President William Ruto has engaged in a perpetual onslaught of the Judiciary accusing it of corruption and frustrating the government’s development projects.

The Head of State singled out the housing levy and the Social Health Insurance Fund, two flagship projects of the Kenya Kwanza government, which have been halted by the courts.

He claimed that some beneficiaries of graft are working with corrupt judicial officers to frustrate the government agenda.

“Some people are saying that because the previous government had a budget to bribe courts, I should go and come up with a budget to bribe the courts. Do you want your money to be used to bribe the courts? No budget will be made to bribe anyone in the courts. The courts are servants of Kenyans,” said Ruto on Tuesday.

“I assure you I will deal firmly and decisively with corruption in courts,” he added.

Law Society of Kenya President Eric Theuri argues that the President’s recent moves are solely geared toward “bullying” the courts to bow to the Executive's wishes.

“Our assessment of the situation is that the president is intent on creating an all-powerful presidency that is above the Constitution. A situation where what he says to be the law, should be taken to be the law,” says Theuri.

Judiciary Building, Nairobi. [Elvis Ogina, Standard]

He argues that if the president has legitimate concerns, then he should raise them with the police, the Directorate of Criminal Investigations (DCI), the Ethics and Anti-Corruption Commission (EACC) and the Judicial Service Commission (JSC).

“All those people and institutions have the capacity not only to investigate but also bring that evidence and prosecute a petition at the JSC. That being the case, you would not understand why a president would appear to be suggesting that he is frustrated because of corruption within the Judiciary,” says Theuri.

Echoing Theuri’s remarks, Mkangi suggests that the president's move to take issues to the public defeats the purpose of dealing with the allegations he is raising against the judiciary. 

“If the statements are only made as public pronouncements, then they are not helpful to the country and the image of the state,” says Mkangi.

“We have only one challenge. The president intends to achieve one thing, which is to bully the courts into giving the decision that the Executive wants. It's not intended to deal with the question of corruption within the judiciary or any other inadequacy,” says Theuri.

Mkangi warns that the President's allegations carry serious implications because they accuse both litigants who are Kenyans and the Judiciary of colluding in a corruption enterprise.

“When the president says we had a kitty for managing the Judiciary, that is a very serious allegation, especially coming from the president and someone who was a Deputy President from that administration,” he says.

He also questions the intention of the budgeted bribery considering the Judiciary set back the Uhuru administration in many of their policies including ruling that the position of Chief Administration Secretary (CAS) is unconstitutional.

President William Ruto. [PCS, Standard]

In 2020, CJ emeritus Maraga declared that President Uhuru Kenyatta was out of order for continued defiance of court orders.

"It is a mockery for the president and his government to demand that citizens obey its laws when they disobey the law themselves and expose members of the public to suffering as a result of the willful defiance of court orders," said Maraga.

Mkangi contends that the conflict the president is initiating with the Judiciary is devoid of purpose, as any grievances can be addressed through legal channels, adhering to the established legal framework.

He further asserts that such actions only tarnish the country’s image, potentially signalling to investors that Kenya operates with a malfunctioning justice system, thereby posing a risk for investments.

“When we throw shade at such an institution, we compromise it and the stature of the entire state," he says.

Theuri further argues that the president is intentionally blaming the courts for doing their work even though the real reason policies and projects from his administrations meet roadblocks erected by the courts is the failure to adhere to the law and legal advice at the onset.

“It’s a question of how his policies are being drafted and how they are being prosecuted. When they came up with this concept of affordable housing, we told them from the start that without a law that gives that project a foundation, it will collapse,” he says.

The LSK president underscores the country's litigious nature and suggests that when governments are planning and implementing a project, they must be cognizant that Kenyans will resort to court proceedings if the implementation deviates from legal compliance.