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How Uhuru's Kisumu speech set the stage for new relations with judiciary

NATIONAL
By Lucas Barasa and Eric Abuga | June 4th 2021
President Uhuru Kenyatta.

President Uhuru Kenyatta’s Tuesday lecture of the Judiciary opened the floodgates for new relations, including yesterday's swearing in of 34 judges.

Lawyers and political commentators interviewed by The Standard were of the opinion that the Head of State had no faith in the system that thrashed his win in 2017.

The outbursts, the analysts think, could also be away of sending an early message to the CJ who has just taken office to cooperate with executive or ship out.

Uhuru’s declaration during Madaraka Day celebration in Kisumu, Moi University lecturer, Prof Nyaga Kindiki, showed further radical changes affecting judges could in the offing ahead of next General Election.

Kindiki said Uhuru’s tough lecture revealed he still had a bone to chew with the third arm of government which started after the Supreme Court nullified his re-election in 2017 and forced a repeat presidential election.

“The President had declared he will revisit the top court’s move if he won the repeat polls which he did,” Kindiki said.

Although the decision to annul the polls was done by a team of judges, Uhuru pointed his guns on retired Chief Justice David Maraga, reading malice on the action and has since always seen the Judiciary as against his regime and as sympathisers to the opposition.

At the time of cancellation of his win, Uhuru also enjoyed strong opposition in Parliament led ODM members who were seen to be working with Judiciary and civil society to undermine his leadership.

As part of the “revisit” threats, Kindiki speculates that Uhuru handlers could have crafted a way of scuttling his opposition in the National Assembly and the Senate through ‘handshake’ with ODM leader Raila Odinga thus leaving the courts as the only main threat to his rule.

“The thinking is that if two arms of government-the judiciary and the legislature, were against the government it could have been difficult for the President to run government and that is why the opposition was silenced through the handshake,” Kindiki said.

He added: “It would have been a bad situation if the Judiciary teamed with the legislature and opposition to approve a petition to remove the President.”

Apart from weakening the opposition in Parliament thus having control of the legislature, Uhuru who has since fallen out with his Deputy William Ruto refused to appoint 40 judges whose names were presented to him with his handlers fearing they could join hands with Maraga to frustrate him.

The Uhuru administration further cut funding to the Judiciary.

The transformation in the Supreme Court, although it followed Maraga’s retirement is also seen in the context of Uhuru’s “we shall revisit” threats.

Kindiki suggested that the Independent Electoral and Boundaries Commission could also be set for reconstruction prior to 2022 elections.

Analysts believe that despite the High Court stopping the BBI process, Uhuru and other proponents of law review were upbeat of carrying the day at the Supreme Court.

Unlike prior 2018 when Uhuru and Ruto were united and spoke with one voice against the judiciary, the DP now appears to be the main defender of the justice system as the ODM legislators either just watch or side with the President especially on the BBI.

Lawyer Philemon Ochwangi said President Uhuru’s remarks were meant to send a message to CJ Koome.

 “He was indirectly telling her to go and talk to the judges so that they can deliver a ruling that favours him,” Ochwangi said.

Ochwangi said the President’s remarks were unfortunate. “The case is before the court; nobody is allowed to comment on such. He wants the court to give a verdict based on his thinking yet he swore to protect the Constitution that gives the Courts liberty to determine cases independently.”

He explained that independent institutions have the mandate to make decisions without being coerced

“Judges have to look at the facts and make decisions based on the law and not on what political leaders present before the public. Court of Appeal judges should ensure that they have made the right decision,” Ochwangi said.

Lawyer Danstan Omari said the Judiciary, as per President Uhuru's speech during Madaraka Day celebrations, is a dangerous animal that is not in tandem with the reality of the President’s wishes.

“In sum total, the President will never appoint the 41 pending judges, he will never comply with court orders, which he believes do not support his vision. He is threatening court officers.”

In his own view, Omari said that the Constitution is a big bother to President Uhuru Kenyatta. “It is actually stopping him from doing what he wants.”

Speaking during a tour of Kisumu on Wednesday, Koome kept off commenting on the President’s attacks as she refreshed her visions for an independent and responsible Judiciary.

Koome demonstrated her resolve to continue with the transformation in the Judiciary her predecessors Willy Mutunga and David Maraga started.

She however hopes to stamp her authority by embracing what she termed as a "bottom-up" model that gives power to junior officers to exercise justice the same way superior courts do.

The transformation process she has inherited soured relationships between the two arms of government. The developments during the Madaraka day celebrations indicates the frosty relationship between the Judiciary and the executive could be far from over.

Koome who visited Kisumu Children’s Remand Home stuck to her official speech and did not field questions from journalists on Uhuru’s blitz said that all courts would apply the same standards in delivering justice.

“What happens in the magistrate’s court, the way that court is run, that is how the Supreme Court is supposed to be run. We take the same standards in the delivery of justice,” said Koome.

She noted that she has adopted a bottom-up approach to leadership which aims to ensure that the justice system is seamless.

“My vision is not any different from what was developed by former CJ Mutunga who came up with the judiciary transformation framework that laid the foundation of the reforms in the judiciary,” she said, adding that her approach also borrows from Maraga’s sustaining judiciary transformation framework.

The two initiatives focused on a more independent judiciary and championed for a system that aims at improving the justice system.

While Mutunga’s reforms led to the improvement of court infrastructure, Maraga’s push saw courts become more firm and delivered firm rulings including the nullification of the 2017 presidential election.

Recently, the courts also ruled against the Building Bridges Initiative. The BBI issue was reignited during the Madaraka day celebrations with Uhuru claiming the courts were subverting the will of the people.?  

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