BBI, Raila petition earned Judiciary praise and ridicule in equal measure

A section of the Judiciary building, Nairobi. [Elvis Ogina, Standard]

The presidential election petition was the biggest highlight for the Judiciary last year.

The petition was filed by Azimio presidential candidate Raila Odinga who was challenging the victory of William Ruto of UDA.

That was, however, not the only moment to behold given there were other instances that produced winners and losers in the Judiciary.

“The best highlight of the year was that the Judiciary managed to affirm its independence and showed that they could not be swayed by political pressure. We saw many landmark decisions which are good progress,” says lawyer Henry Kurauka.

 High moments

The Supreme Court was at the centre of the two biggest decisions this year which not only provided the highest moment for the third arm of government but also shaped the political landscape of an election year.

According to constitutional lawyer Duncan Okatch, the manner in which Chief Justice Martha Koome, justices Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndungu, Isaac Lenaola and William Ouko handled the dispute was impressive.

“Issues around the presidential election dispute were so huge but they managed to do it unanimously. The fate of the country was in their hands and they let the country move forward by handling the petition very well,” said Okatch.

The petition started like a mountain of a case when Raila and his running mate Martha Karua challenged the decision to declare Ruto as the winner of the August 9 polls.

They were joined by seven other petitions challenging the conduct of the Independent and Electoral and Boundaries Commission (IEBC) in a case that attracted international scrutiny. After 14 days, the Supreme Court affirmed Ruto’s election.

Lawyer Kurauka said the apex court laid the ground for stamping its authority in April when it ruled against the Building Bridges Initiative (BBI). “Declaring the BBI as unconstitutional was the beginning of the high moments for the Judiciary. From the High Court to the Court of Appeal and finally, to the Supreme Court, the BBI provided the Judiciary with a platform to stamp its authority,” said Kurauka. According to legal analysts, the big cases were not the only instances that defined the Judiciary’s glorious moments in 2022.

The lawyers argued that the establishment of the Judiciary Fund and making it operational provided a turning point for the third arm of government to depend on itself.

Although the 2010 Constitution provided for the establishment of the fund, it was not until August 12, more than 12 years later, that the fund became a reality, when the National Treasury disbursed Sh9 billion to it.

CJ Koome, while lauding the milestone, stated that the funds would make the judiciary free and decide on its expenditure without depending on other arms of government.

Supreme Court Judges led by Chief Justice Martha Koome when they upheld President William Ruto's win in the 2022 General Election. [Collins Kweyu, Standard

“Having the judiciary fund in operation is a great milestone that will aid us in planning and timely execution of our operations and projects. It will also help us eliminate challenges of budget cuts and delayed disbursement of funds from the treasury,” said Koome. Mr Okatch said another big leap was the embracing of technology which allows lawyers and litigants to attend courts virtually without spending the costs of accessing courtrooms. 

Low moments

As with light which is followed by darkness, the Judiciary had its own share of low moments which brought the administration of justice into disrepute. Whereas the Supreme Court’s determination of the presidential election petition was celebrated as a landmark decision, it equally provided the Judiciary with one of its lowest moments when the judges were heavily criticised for their choice of words in their ruling. “Perception is everything, and it is a fact that public perception of the Judiciary dropped after the presidential election dispute. That is why we saw heavy criticism of the Chief Justice and the Supreme Court judges,” said Kurauka. The attacks on judges were so heavy that the Judiciary was forced to issue a statement calling for tolerance and pleading with Kenyans to stop targeting individual judges for online abuse.

Several lawyers argued that although the Supreme Court had a right to make its decision, the choice of words by the judges was unfortunate.

Before the dust could settle on the Supreme Court criticism, Justice Koome was to again face low moments after taking pictures with President Ruto during the presidential inauguration and the president’s address to Parliament.

Senior lawyers, including Ahmednassir Abdullahi and Siaya Governor James Orengo, accused the CJ of leading state capture of the Judiciary with her dalliance with the Executive.

Alarming remarks

But the Judiciary and some civil society organisations came to the defence of the CJ, stating that the alarming remarks were undermining the dignity and stature of the Judiciary.

“We call on the Judiciary, political leaders, and citizens to exercise restraint, respect and safeguard the constitutional underpinnings of our established institutions towards fostering the rule of law and promoting the democratic fabric of our society,” said the International Commission of Jurists.

The Judiciary was again placed in an awkward position by the decision of the Director of Public Prosecution Noordin Haji to withdraw some high-profile cases involving individuals close to the President.

Although the Judiciary had nothing to do with the DPP’s decision to withdraw the cases, it equally received criticism for not standing its ground and declining the applications to terminate the cases.

Supreme Court judges led by Chief Justice Martha Koome when they gave their verdict on BBI. [Collins Kweyu, Standard]

“The Judiciary could have done better in deciding to terminate the cases. They made the public view them as conduits as an institution that is being used to settle political scores,” said Okatch. There were many winners in the Judiciary, including those who won landmark cases. The winners also included six judges who were rejected by former President Uhuru Kenyatta and stayed in the cold for over three years.

Judges Joel Ngugi, George Odunga, Aggrey Muchelule and Weldon Korir had been nominated to the Court of Appeal in July 2019 but Uhuru declined to appoint them on account that they did not meet the integrity threshold for the appointment.

Uhuru had also rejected the appointment of Judith Omange and Evans Makori as judges of the Environment and Lands Court despite several court orders that he gazettes and appoints them.

Sworn-in

The six judges were however all smiles on September 13 when President Ruto, in his first executive order after assuming office, appointed them to the respective courts.

They were joined by 20 other judges appointed to the High Court appointed by President Ruto on December 6 following a recommendation from the Judicial Service Commission (JSC).

The 20 included seven magistrates, practising advocates and law lecturers who were chosen from a pool of 104 candidates interviewed by JSC.

Those promoted from the magistrates’ court to the High Court were Lawrence Mugambi, Patricia Gichohi, Kavedza Diana, Heston Mbogo, Peter Mutua, Florence Wangari and Teresa Achieng. Those from legal practice and academia were Mongare Josphine, Nyaundi Patricia, Sophie Chebet, Prof Nixon Wanyama, Shariff Mwanaisha, John Chigiti, Mutai Gregory, Wananda John, Mohochi Samwel, Olel Francis, Dr Gathiru Freda Mugambi, Magare Dennis Kizito and Visram Aleem Alnashir. 

In May 2022, High Court judge Said Chitembwe was suspended by former President Uhuru Kenyatta following a recommendation by JSC that he be investigated over allegations of gross misconduct.

Uhuru then appointed a tribunal, chaired by Court of Appeal Judge Mumbi Ngugi and members Fred Ojiambo, Lady Justice Abida Ali Aroni, Justice Nzioki wa Makau, lawyer James Ochieng Oduol, Lt. Gen. (Rtd) Jackson Ndung’u and Dr Lydia Nzomo, to investigate his integrity.

The tribunal has been holding its sessions, in camera, and is expected to give its verdict before February 2023. JSC had recommended Chitembwe’s suspension over three petitions which accused him of impropriety in handling a succession dispute while serving at the High Court in Malindi and the impeachment case against former Nairobi Governor Mike Sonko.