Revisitor and revisited: We can’t blame Uhuru entirely

Chief Justice Martha Koome with President Uhuru Kenyatta and Deputy Chief Justice Philomena Mwilu at State House, Nairobi.[PSCU,Standard]

Recently, the court has dropped a number of bombshells on President Uhuru Kenyatta’s Executive. First was the High Court judgment declaring unconstitutional the appointment of Chief Administrative Secretaries (CAS).

Then came the elephant verdict silencing the BBI reggae and most recently the one declaring some sections of the president’s Executive Order No. 1 of 2020 unconstitutional. This prompts the question, is the president ignorant of the law or is the court revisiting the ‘revisitor’?

To answer this, let us break down the three judgments. The court declared the CAS posts unconstitutional on the basis that the law was not followed while creating them. The court also noted that the CASs were not vetted. The court was basically saying the president obliterated the law by creating an office as powerful as that of the Assistant Minister, yet such did not exist in law.

In the BBI bombshell, the unanimous five-judge bench poked holes in all aspects of the constitutional amendment process. The judges began by stating the basic structure doctrine. In simple terms the court meant that some sections of the Constitution were basically unamendable or so sacrosanct and hence require a very high threshold.

The court said Kenyans bequeathed themselves a constitution that would not be ‘abrogated through incompatible interpretation, technical subterfuge or by the power unleashed by amendment by stealth’ (paragraph 473 of the judgment).

Other considerations given were question of the power of the president to promote a constitutional amendment through popular initiative and the place of IEBC including the quorum of the commission and absence of legal instruments governing a referendum.

Thirdly, Justice James Makau of the High Court stated that sections of Executive Order Number 1 of 2020 that touched on the judicial arm were unconstitutional since they infringed on the independence of the Judiciary.  

In these instances, the president was aware of what the law provided for, but still went ahead to act in the manner that he did. Perhaps he is unaware of how the law works in some instances or he is misguided on the limits of presidential power.

Or maybe his view on ceremonial functions bestowed upon him is different from what many of us understand. Perhaps that is why the president and his handlers have always said that if the Constitution bestows a duty on the presidency, the president is at discretion to carry out that duty in whatever manner he deems fit notwithstanding the procedures and limits provided for in law.

You could blame this on the ambiguities created by our Constitution. Recently, the president received wide criticism over his refusal to appoint six judges nominated by the Judicial Service Commission almost two years ago. If the Constitution intended that the exercise of judicial power be independent, why would it place such an onerous task of appointment of judges on the president? Why wouldn’t the drafters of the Constitution not place that function in the judicial arm solely where the judges would be nominated and appointed by the JSC and sworn in by the Chief Justice immediately after that?

Some would argue that it was meant as a system of checks and balances, but it could also be argued that for the independence of the Judiciary to be achieved, there should no other hand in appointment of judges other than the JSC.

After all, according to Article 159(1), judicial authority just like the legislature’s and executive’s, authority is derived from the people and is exercised on behalf of the people, the mode of appointment of judges notwithstanding.

In summary, we can agree that the exercise of presidential power is and should be limited by law to avoid arbitrariness and anarchy in running of state affairs. Still, we cannot squarely blame President Kenyatta for failing to apply the law as it is but also question the grey areas in law.

The writer is an LLB graduate from UoN and an advocate trainee at the Kenya School of Law?.