BBI ruling widens rift between judiciary and executive

Justices Teresia Matheka, Justices George Odunga, Joel Ngugi Jairus Ngaah and Chacha Mwita at the High Court when they delivered judgement on eight consolidated petitions challenging the BBI referendum.[Collins Kweyu, Standard]

The High Court decision that dealt a blow to the Building Bridges Initiative (BBI) has opened another can of worms in the strained relationship between the Judiciary and the Executive.

By attacking the integrity of President Uhuru Kenyatta, Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka touched the heart of the Executive, which legal observers say will worsen the bad blood between the two arms of government.

The judges in their ruling declared Uhuru out of order for violating Chapter Six of the Constitution.

Constitutional lawyer Henry Kurauka said the ripple effect of the decision will be the escalation of the strained relationship between the two arms of government at a time when everything is being done to mend the frosty relationship.

“To me the judgment was politics from the bench, which is going to worsen the already existing wars between the Judiciary and the Executive. It came at the time they are trying to mend the fences but now we fear it will be worse,” said Kurauka.

The Judiciary was also opposed to some provisions in the Constitution of Kenya (Amendment) Bill 2020, which it said will interfere with its independence.

The Judicial Service Commission (JSC), in a memorandum to Parliament, opposed the creation of the office of Judiciary ombudsman and a provision that allowed the Executive to appoint additional two members to the commission.

The relationship between the two arms reached its lowest point last year towards the end of reign of retired Chief Justice David Maraga, who on several occasions publicly lamented of frustration they were encountering from the Executive.

Justice Maraga at one point declared that President Kenyatta was out of order for refusing to appoint 41 judges and for failing to reign in his Executive, which continued to violate the rights of many people by disobeying court orders.

According to Maraga, it was 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 wilful defiance of court orders.

“This disregard of court orders by the president is part of the pattern by the Executive to undermine the Judiciary,” the former CJ said.

Whereas the courts had issued two orders to compel the president to appoint the 41 judges, 11 of whom were nominated to the Court of Appeal, the president is yet to do so more than one year since the JSC made the nominations.

The Executive, through Attorney General Kihara Kariuki, stood its ground and accused the Judiciary of seeking public sympathy to hide their failures, and that the president will not concede to pressure to swear-in judges with questionable integrity.

As a result of the bad blood between the two arms, the Judiciary has been complaining about budgetary cuts from the Executive to punish them for their decisions against the government.

In the last financial year, the Judiciary had requested to be allocated Sh28 billion but only got Sh14.5 billion, which was again slashed to Sh11.5 billion.

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