Tension between Executive and Judiciary is necessary

When President William Ruto presided over the swearing-in of twenty new judges of the High Court at State House Nairobi on December 7, 2022. [Wilberforce Okwiri, Standard]

A lot has been said about the apparent tension between the Executive and the Judiciary. Some have posited that it presages the return of the dark old days of imperial presidents who steamrolled their will over all institutions. Others have suggested that it is a precursor to the Constitution being held in abeyance; the coup de grace that now makes Executive capture of all State institutions complete.

Nothing could be further from the truth. If there is tension between these two arms of government, it is a necessary tension. Indeed, such tension is ordained by the sovereign (we the people of Kenya). Should the Executive and the Judiciary become overly cozy, it is the people who suffer. In a functioning democracy such as Kenya's, the Executive has certain coercive abilities. Where they are deemed to have impugned the fundamental rights and liberties of citizens, it is the courts that these citizens go to for solace. For instance, the Executive has the monopoly of legal violence. Only the courts can fetter that violence from being visited on citizens willy-nilly. And this is an outcome of the 2010 Constitution.