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Defying courts set Uhuru Kenyatta on collision course with Judiciary

President Uhuru Kenyatta with former Chief Justice David Maraga after the swearing-in of new judges of the High Court at State House. [File, Standard]

On the morning of June 8 2020, retired Chief Justice David Maraga took the bold step and declared that President Uhuru Kenyatta was out of order for continued defiance of court orders.

It came as a surprise when Maraga walked out of his office at the Supreme Court, a lonely man with no judge or commissioner from the Judicial Service Commission (JSC) on his side, and took on the president by saying what everyone was whispering in the corridors of justice.

“It is 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 willful defiance of court orders,” said Maraga.

Unlike his predecessor Dr Willy Mutunga who avoided confrontation with President Kenyatta during his tenure between 2012 and 2016, Justice Maraga would not take any cases of disobeying court orders lying down.

In the midst of the push and pull between the president, the Executive and the Judiciary, no one seemed to have felt the pain and frustration of disobeying court orders like Justice Maraga.

Integrity issues

On the day he addressed the president in June 2020, the former CJ was reacting to his (President Kenyatta’s) refusal to appoint 41 judges nominated by the JSC despite two court orders compelling him to do so.

Justice Maraga said that Uhuru’s continued disregard of court orders was part of a pattern by the Executive who had taken a cue from his actions to disrespect courts and undermine the Judiciary.

The president responded, saying he would not obey the court orders to appoint judges who had integrity issues, before subsequently appointing 36 and leaving out six.

That was not the first time Uhuru had disobeyed court orders. In his ten years in office, the president’s relationship with the Judiciary was like oil and water.

His reactions, whenever there was a court order affecting his administration, were fast and furious. Nothing epitomises this like his promise to “revisit the Judiciary” after the Supreme Court nullified the 2017 presidential elections.

Uhuru had no kind words for the judges who stopped his joint push with former Prime Minister Raila Odinga to amend the Constitution through the Building Bridges Initiative (BBI).

President Kenyatta said those that handled the case and declared that his involvement in the process was null and void were being rigid and unrealistic in denying Kenyans an opportunity to address imbalances created by the 2010 Constitution.

“While I stand by the rule of law and I will always obey the decisions of the courts, I am also compelled by my position to heed the sovereign and supreme voice of the People of Kenya who were yearning for constitutional amendments,” he said.

Greatest legacy

In May 2021, President Kenyatta in open defiance of a court order, oversaw the takeover of the Kenya Meat Commission (KMC) from the Ministry of Agriculture and moved it the Ministry of Defence  and the military given authority to run the commission.

According to Law Society of Kenya president Eric Theuri, the president’s greatest legacy when it comes to administration of justice was his disregard and contempt of court orders.

“The president deliberately took active measures in disobeying court orders. He refused to appoint judges; he refused to assent to the judicial fund and so many other things,” said Theuri. "If there is one president who has dealt a blow to the rule of law then it has to be President Kenyatta." 

Theuri added that the president made court orders look like academic exercises where the judiciary did its part in entrenching the rule of law but the president did nothing to ensure the orders are respected.

Activist Okiya Omtatah who is known for taking on the government through several lawsuits challenging Executive decisions, was once on the receiving end when Uhuru accused him of going to court just to stop his projects.

President Kenyatta was unhappy that Omtatah had been obtaining court orders that affected his administration and implementation of key projects.

But Omtatah says the president never understood the concept of rule of law and democracy during his ten-year tenure.

“I would say that Uhuru’s performance when it comes to the rule of law was dismal. He disobeyed so many court orders which in the end affected the administration of justice and belittled the judiciary,” said Omtatah.

The nullification of President Kenyatta’s 2017 win seemed to have set him on a collision course with the Judiciary as witnessed in the subsequent months when his administration refused to obey several court orders.

After the controversial swearing-in of Raila as the people’s president, Uhuru’s government ordered the closure of three television stations that aired the live event and deported lawyer Miguna Miguna to Canada.

The affected media houses obtained orders to reopen their stations while the courts ordered that Miguna be allowed back but these orders were disobeyed.

As a result, LSK organised a countrywide boycott of courts to protest the government disobedience of court orders.

While the fights between the president and the Judiciary over court orders intensified, lawyers trained their guns on Attorney General Kihara Kariuki saying he was misadvising the president.

Havi once said that the president had a contract with the people to obey and uphold the constitution and must honour that contract by respecting court orders.

Legal analysts argued that the president’s tendency to disobey court orders interfered with the independence of the Judiciary as some judges felt demoralised.

According to senior counsel Dr John Khaminwa, it was painful for any lawyer to work hard drafting cases to defend a client but when they win, they could not enjoy the fruits of their labour because the government had refused to obey the court order.

“If we don’t respect court orders then we don’t have foundation for the rule of law,” said Khaminwa.

Justice Maraga had at one point told the Executive that courts are templates of justice and places of refuge for those seeking protection, and that it was wrong for the president to despise them.