President William Ruto has had quite mixed fortunes in the corridors of justice.
On the one hand, the Intentional Criminal Court terminated the case against him relieving him of a burden he has had to carry for more than a decade, on the other he doesn’t seem to get his way in local courts.
The courts have repeatedly served him a bitter pill, reminding him separation of power actually works.
Whereas the president has an almost chokehold on Parliament, especially the National Assembly, he doesn’t seem to get it right in the courts.
Coincidentally, his first order after winning the elections was to appoint judges whom the previous regime had ejected for some reasons. And when he swore in the judges, he pledged to live by the rule of law.
“Kenya can only be better if we become a country of the rule of law. Anything else leads to anarchy and confusion. We are all equal before the law,” said Dr Ruto.
Citizen litigation appear to be the thorn in the flesh for President Ruto’s government as court rulings deal major blows to his development plan.
On Monday, the government suffered a setback after the High Court suspended its move to privatise 11 State corporations.
The move followed a petition filed by the Raila Odinga-led Orange Democratic Movement (ODM) party.
Justice Chacha Mwita issued the order after ODM, through lawyer Jackson Awele, said the public was not allowed to give its views regarding the Privatisation Act which made it easier to sell the State enterprises to private companies.
“A conservatory order is hereby issued suspending the implementation of Section 21 (1) of the Privatisation Act 2023 or any decisions made according to that section, until 6th February 2024,” reads the order granted by the judge.
ODM argued that some public assets like the KICC, Kenya Pipeline Company, Kenya Literature Bureau, and Kenya Seed Company can only be privatised with the consent of the people at a referendum, noting the firms form part of the sovereign wealth of Kenya with significant cultural and strategic importance to the public.
On October 9, 2023, President Ruto signed the Privatisation Bill, 2023 (the impugned Act) into law and designated its commencement as October 27, 2023.
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Yesterday, the High Court in Nairobi also slammed the brakes on Ruto’s new generation identification cards dubbed Maisha Namba.
Justice John Chigiti directed the government not to register or issue the cards following a suit filed by Katiba Institute.
The judge noted that the suit filed in court raises an arguable case that should be heard and determined on merit within the Fair Administrative Action Act framework.
Katiba Institute’s lawyer Dudley Ochiel in the cases noted that Interior CS Kithure Kindiki was committing the same error committed during a similar exercise for Huduma Namba by the previous regime.
Since the Kenya Kwanza government took over the rein of power from the Jubilee government, Ruto’s administration has been on the receiving end, with judges either suspending or declaring unconstitutional key government policies and governance decisions.
Ruto suffered his first major blow in the courts in July, this year, when judges declared the position of Chief Administrative Secretary (CAS) illegal, blocking 50 people he had appointed from assuming office. The court termed the creation of the CASs positions unconstitutional.
A three-judge bench found that the law was not complied with in the establishment of the said office.
Justices Kanyi Kimondo and Ali Visram said it was not the intention of the framers of the Constitution to have 50 CASs deputise 22 Cabinet Secretaries. Justice Hedwig Ong’udi, however, disagreed with the decision terming the office unconstitutional.
The bench agreed with the petitioners in the case that there was no public participation regarding the additional 27 posts.
“The sequence and procedure leading to the additional 27 posts did not adhere to public participation. The process didn’t meet the threshold,” the bench ruled.
The judges said it was incumbent upon PSC to prove public participation covered all the posts.
This was followed by the suspension of the implementation of the Finance Act, 2023, freezing billions of shillings in tax collections a day and disrupting the administration’s spending plans.
The Court of Appeal lifted the suspension of the Act after the government’s appeal.
Last week, the Housing Levy was also declared unconstitutional.
Justices David Majanja, Christine Meoli and Lawrence Mugambi said the Kenya Kwanza regime could not explain the rationale behind the housing levy, and how it only targeted those who are employed while leaving all the other Kenyans who earn a living from the informal sector or are running businesses.
The judges were of the view that the employed were a low-hanging fruit that was within reach by the Kenya Kwanza regime, and with little resistance.
At the same time, the court found that it was illegal for the Lands Cabinet Secretary to appoint KRA as a collection agent. The judges said that KRA is mandated to collect taxes and levies set out in its Act. According to them, the Housing Levy is not part of the taxes that KRA is allowed to collect. Law Society of Kenya (LSK) fronted the fight to declare Section 84 of the Finance Act, 2023, ambiguous and unconstitutional. The court also declared amendments to the Kenya Roads Board Act, Unclaimed Asset Act, and Statutory Instrument Act, to be unconstitutional.
This came hot on the heels of another court order that stopped the deployment of hundreds of police officers to Haiti on a UN-backed mission aiming to pacify the troubled Caribbean nation.
The ruling came a day after the United Nations warned that security in Haiti, where violent gangs control large swathes of the country, has collapsed even further, with major crimes hitting “record highs.”
The United Nations had given the go-ahead in early October for the deployment of the non-UN multinational mission, led by Kenya, to help the overwhelmed Haitian police.
But the court subsequently granted an interim injunction in a case brought by opposition politician Ekuru Aukot, who argued the deployment was unconstitutional as any law or treaty did not back it.
Another notable decision by the court that went against the wishes of the Kenya Kwanza government was a ground-breaking ruling against the president’s decision to lift the moratorium on logging.
Justice Oscar Angote ruled that the lifting of the moratorium on logging instated by the government in 2018 must not go ahead.
Justice Angote ruled that the logging moratorium must be reinstated until the government complies with the orders issued three months from the date of judgment.
The case was filed by LSK against the Attorney General, the Cabinet Secretary of the Ministry of Environment, the Kenya Forest Service, and other relevant parties.
The petition challenged the lifting of the logging moratorium. Natural Justice supported the petition as the second interested party.
Citizen litigation was a thorn in the flesh for the administration of Ruto’s predecessor Uhuru Kenyatta and the late President Mwai Kibaki.
Perhaps the best known case, soon after 2010, was that brought against President Mwai Kibaki, when he proposed to appoint an all-male cast to the positions of Chief Justice, Attorney General, Director of Public Prosecutions (DPP) and Controller of Budget.
The petitioners argued that Kibaki had committed at least four sins. First, despite the Constitution stating that there has to be gender equity in appointments, none of the appointees was a woman.
Second, the government was under the nusu mkate arrangement (coalition government) and the law required the President, before making any appointment, to consult Prime Minister Raila Odinga. He had not.
Third, all the appointees, save for the AG, had to be competitively recruited and not handpicked as Kibaki had done. The court spoke quickly and firmly and found the president had violated the constitution — forcing fresh, more elaborate and open recruitment processes to take place.
Under Uhuru, the courts blocked the push to change the Constitution at a referendum through the government-backed Building Bridges Initiative reform proposals.
Uhuru’s relationship with the Judiciary particularly got sour during his second term in office following the landmark Supreme Court that nullified his re-election victory and ordered a repeat election in 2017.
His critics accused him of retaliating by squeezing the Judiciary budget and stalling and cherry-picking the appointment of 41 judges nominated by the Judicial Service Commission.
Ruto was seen to be keen to mend fences, having moved on his first day in office to appoint the six judges overlooked by Uhuru and instructing the Exchequer to give the Judiciary more funds.
The opposition alleged, without giving any evidence, that the president’s decisions were part of a scheme to capture the public accountability institutions after defections handed him control of Parliament.