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President Uhuru Kenyatta vs the Judiciary: How it all started

By Judah Ben-Hur | June 13th 2021
With at least 13 months to the end of President Uhuru Kenyatta's tenure, his feud with the Judiciary is far from over after the courts slammed breaks on BBI. [Courtesy]

President Uhuru Kenyatta's fight with the Judiciary started after the landmark ruling that annulled the 2017 presidential election.

The decision that affirmed the independence of the Judiciary and won it admiration globally would trigger conflict between the Executive and the Judiciary.

“We shall revisit this thing. We clearly have a problem,” said, President Kenyatta a day after the ruling on September 22, 2017.

The president’s subsequent actions undoubtedly targeted the Judiciary.

The government ignored court orders directing it to restore television stations back on air after they were switched off for airing the controversial swearing in of ODM leader Raila Odinga as the ‘People’s President’ in January 2018.

The Communication Authority of Kenya switched off several TV and radio stations that aired the event that took place at Uhuru Park grounds.

The government did not act on the court until four days lapsed.

The government also ignored a court orders barring it from deporting lawyer and opposition figure, Miguna Miguna to Canada and requiring it to return his passport.

Other court orders ignored directed the government to release and allow the re-entry of Miguna in to the country

High Court Judge George Odunga fined the Interior Minister and Inspector General of Police and the head of Immigration but that was as far as the adherence to court orders went. Miguna is yet to return to the country since his illegal deportation in 2018.

In the financial year 2018/2019, Judiciary had been allocated Sh17.3 billion but was further slashed down to Sh14.5 billion by Parliament through the Appropriation Act.

In June 2018, the medical insurance cover for judges and Judiciary employees was suspended over insufficient funds.

The same year, the Judiciary decried stalled projects over lack of funds including more than 50 mobile courts, backlog of cases, discontinuation of the ICT, modernization of court systems and halting construction of new courts.

International Commission of Jurists (ICJ) attributed the slashing of the budget to national government threats to ‘revisit’ the Judiciary.

In 2019, the Judiciary had requested Sh31.2 billion, but Parliament allocated it Sh14.5 billion, which the Treasury later slashed to Sh11.5 billion in order to raise funds for President Kenyatta’s Big Four Agenda.

In the financial year 2021/2022 the Judiciary's projected Sh28 billion budget has been cut by Sh11 billion handing it Sh17.92 billion.

The Judiciary also faced the challenge of dispensing justice to the public after President Uhuru declined to approve 41 judges recommended by the Judicial Service Commission in 2019.

During a public address in 2020, former Chief Justice David Maraga stated that it is a mockery for the President to call on citizens to obey the law when he blatantly disregards the same law through wilful defiance of court orders.

“It is important to clearly and categorically state that this shortage of judges and the near paralysis of court operations has been caused by the President. The President has persisted in his refusal despite orders in two cases requiring him to swear in those judges within 14 days,” said the former CJ.

Last week, the Head of State finally swore in 34 out of the 40 judges presented to him by JSC for appointment in the High Court and Court of Appeal leaving out six judges on grounds of having ‘questionable background.’

“The courts ruled that the President cannot change the list, review it or reject some names. He cannot decide to cherry-pick from the list of nominees,” added Maraga.

In May, the Head of State commissioned the reopening of the refurbished Kenya Meat Commission (KMC) factory in Athi River despite a court order prohibiting the transfer of KMC from the Agriculture Ministry to Defense Ministry.

In February the High Court declared that the transfer of KMC to the Defence Ministry was in violation of Article 10 of the Constitution on public participation.  The court declared that there was no public participation in the transfer decision thus making the President’s executive order unconstitutional.

In April, the High Court declared the position of Chief Administrative Secretary (CAS) illegal. Justice Anthony Mrima faulted President Uhuru Kenyatta for creating the position after the 2017 elections.

The judge ruled that the creation of the position was unconstitutional as their was no public participation while agencies, including the Salaries and Remuneration Commission (SRC), were also not involved.

Even though the court directed the Attorney General to give a report in 30 days detailing the position of the CASs, nothing is yet to happen two months after the ruling.

In June, The High Court declared the presidential Executive Order number one, unconstitutional.

Justice James Makau ruled that the order, which placed sections of the Judiciary, Tribunals, Commissions and independent offices under the Executive, risked jeopardising the independence of the Judiciary.

With at least 13 months to the end of President Kenyatta's tenure, his feud with the Judiciary is far from over after the courts slammed breaks on the Building Bridges Initiative (BBI).

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