Calls for Ruto-Koome dialogue raise concern over Judiciary independence

The planned dialogue between President William Ruto and Chief Justice Martha Koome has cast doubt on the independence of the Judiciary, especially determination of petitions against the government.

After President Ruto attacked the Judiciary for being corrupt, Justice Koome had condemned the anti-Judiciary remarks and urged judges and judicial staff to continue exercising their duties in accordance with the law and without any undue influence from any authority. She promised   that the Judicial Service Commission (JSC) will protect them.

“My Office and the Judicial Service Commission have made it clear to the other arms of government and to the general public that the proper way to challenge a court decision, if one is dissatisfied, is to appeal or seek review in a higher court. Attacking judges and Judicial officers who made a decision in the public undermine all the values of our Constitutional order,” she stated.

The CJ warned that the State or public officers threat to defy court orders and the rule of law is likely to set the stage for anarchy and breach the public trust vested in officials who should at all times act in a manner that is consistent with the purposes and objects of the Constitution.

However, in a drastic turn of events, Koome would later call for dialogue between the Judiciary and Executive in the wake of the President’s claims that corrupt judicial officers who are being used by the Opposition to derail government agenda.

The Head of State, while maintaining that he would not obey court orders that derail Kenya Kwanza pet projects, claimed that former President Uhuru Kenyatta's regime had a budget to bribe judges to rule in favour of the Jubilee government.

“Some people are saying that because the previous government had a budget to bribe courts, I should go and come up with a budget to bribe the courts. We respect the independence of the Judiciary and other institutions, but that independence does not extend to sabotage public interests,” he said.

The President would welcome Koome's call for dialogue.

The proposed meeting by the two leaders has been opposed by several actors including the Opposition, the Law Society of Kenya (LSK) and lobby groups who opine that the dialogue will be to discuss a poisoned fruit and will erode public confidence in the Judiciary.

LSK President Eric Theuri maintained that they were opposed to such talks as ‘they were not informed by any public good but a deal breaking arrangement’.

“The President has asserted that his agenda is being blocked by the courts because of corruption. All that he needs to do is use the laid down constitutional procedures to clean the Judiciary and not dialogue with the Judiciary,” Theuri told The Standard on phone.

The LSK president said that he was not opposed to the dialogue between the three arms of government but such talks should revolve around hiring of judges, ways to harness and increase the Judiciary fund and opening of more courts in the country, which would advance the interest of justice to Kenyans.’

“When a meeting is born out of claims of corruption in the Judiciary, the only outcome will be poison and will erode the confidence by Kenyans in the Judiciary,” Theuri said.

Other players led by Kenya Union of Journalist Secretary General Eric Oduor said the Chief Justice ought to tell off the Executive and avert the danger of the Judiciary being converted as an extension of the Executive.

“When media was under attack, we stood our ground and maintained our independence, the Judiciary is on trial and should they meet, Koome will have surrendered the independence of the judiciary to the Executive,” he said.

Azimio co-principals Raila Odinga and Kalonzo Musyoka have also waded into the calls of dialogue saying they would comprise the Judiciary.

“There is no need for CJ Koome to call for dialogue with President William Ruto. The Judiciary is independent. Calling dialogue with President Ruto is the beginning of compromising our judiciary,” warned Raila.

“Our MPs have been hijacked by the president. They approve policies that are not friendly to Kenyans. The Executive has also been compromised. The Judiciary was the only remaining hope for Kenyans,” he added.

The Wiper leader Kalonzo was categorical that the talks were suspicious.

“I cannot understand why the CJ and the President would want to meet… The meeting not only undermines the independence of the Judiciary but also raises suspicion,” he said.

Two years ago, during interview with the JSC, Koome while addressing the question on how she could tackle the dilemma of 41 judges who the former President had refused to appoint, said the matter would be resolved through negotiations and not threats.

“This must be resolved through negotiations. We are independent as Judiciary and nobody should attempt to take its dependence. Therefore, when the right hand doesn’t agree with what the left hand is doing (Kenyans), the body suffers. When I look at the Judiciary, we are interdependent as far as delivery of service is concerned. Where do we come together? We will hold regular meetings with the Executive and Legislature to end the standoff. We must discuss this issue of the appointment of 41 judges with the president, find out where the problem is and resolve it,” she said then.

And when she was appointed Chief Justice, Koome wrote to former President Kenyatta on June 3, 2021 requesting for an urgent meeting over three issues; administration of justice, operationalization of the judiciary funds and the budget allocated to the judiciary.

After the letter, however, the President did not call for a meeting with the CJ. Instead, he gazetted the appointment of 34 judges. This happened just a day after Justice Koome sent him a letter.

But Uhuru's refusal to appoint the remaining six judges over a National Intelligence Service report that had briefed him that the six were allegedly "tainted" worsened woes between the Judiciary and the Executive to a point that Koome called for his impeachment for what she termed as violating the Constitution.

“The appeal merely notes that the appropriate remedy to the Katiba Institute petition is a declaration that the cure for violation of the Constitution is impeachment of the President or any other order that secures his direct accountability to the Court,” lawyer Charles Kanjama argued on the CJ behalf then.

The refusal by Uhuru to appoint the six judges and failure by the Jubilee government to operationalise the Judiciary fund became Ruto’s campaign tool and immediately he took over  he oversaw the swearing in of the six judges and rolled out the Judiciary Fund.

“To consolidate the place of the Judiciary in our constitutional and democratic dispensation, my administration will respect judicial decisions while we cement the place of Kenya as a country anchored on democracy and the rule of law,” President Ruto said.

“Our campaign for the financial independence of the Judiciary has paid off with the implementation of the Judiciary Fund on July 1 this year. My administration will scale up the budgetary allocation to the Judiciary by an additional Sh3 billion annually for the next five years,” he said on September 13, 2022.

However, pro government leaders are defending the President, maintaining that the talks between the three arms of government would establish a roadmap for fighting corruption and areas of partnerships for ‘effective delivery of services to Kenyans.

East African Legislative Assembly MP Maina Karobia said": “The President is the head of Government and as such has the constitutional mandate to consult and guide all arms of government for the good of our country.”

Gatanga MP Edward Muriu said: “He (The President) is within his rights to meet the leaders of other arms of government in efforts to streamline his government. Where the three arms are independent, they are interdependent of each other and require each other without pulling their muscles against each other.”