Judicial power in Kenya increasingly dependent on political goodwill

The Supreme Court of Kenya. [Samson Wire, Standard]

The sufficiently celebrated Constitution of Kenya, 2010, clads our honourable judiciary with the exclusive mandate of dispensing justice with respect to conflicts arising in our country. This one plus one equation then equals the logical connotation that what the Judiciary finds to be the legally correct position on a particular matter is what will carry the day until either a court of higher jurisdiction holds to the contrary and, failing such, when our Lord and Saviour returns.

What the Constitution did not foresee, however, is that in this Republic, the truth is very much malleable to the biases and preferences of whoever holds the sceptre in any given five-year term. Judicial power in Kenya has become dependent on its capacity to advance the interests of the Executive, which if met with a defiant bench, simply disregards court decrees.

To judge the veracity of this conclusion, the reader is invited to consider the question of the position of Chief Administrative Secretary (CAS), which the President Emeritus created while constituting his Cabinet on January 26, 2018. Still amorphous then, the best definition of this novice office had been that it is just below that of the Cabinet Secretary while being just above that of the Principal Secretary.

President Uhuru justified his artistry with the structure of the Executive by stating that the CASs intended purpose was to realise “a government that reflects the diversity of our nation”, although that is highly doubtful considering the president went on to populate those offices with known allies and in a process so opaque you would have been forgiven to think uko nchi ingine.

When the matter was brought to court, Justice Anthony Mrima’s answered the question, “Is an inclusive government solely achievable through the creation of more jobs to accommodate as many Kenyans as possible?” in a resounding negative. In essence, the court opined that the manner in which the office of the CAS had been established, regardless of the supposed good intentions behind it, was in violation of the Constitution and the principles governing the establishment and abolition of offices set out in the Public Services Commission (PSC) Act.

In doing this, the court was well within its rights as the PSC Act prudently lists the considerations for the establishment of an office as including analysis of the fiscal implications, specific job designation, and demonstration of the necessity of the job’s existence, none of which were exhibited in this case.

Following the decision, the Executive then placated the Judiciary with the public interest argument contending that there would be no need to execute Justice Mrima’s order and dismiss the CASs when President Kenyatta’s term was coming to an end. The latest development in this battle of the overlords is that the Employment and Labour Court has, in a petition presented by the Law Society of Kenya, suspended the recruitment process for the position whilst the PSC has received 600 applications for the positions.

In the background of an extremely extravagant wage bill and a bloated government, the defence of this most undignified show of impunity by the PSC has been the simple assertion that in fact due process was followed in the creation of the posts, and the PSC is set to diarise the CASs shortlisting soon. Why the Executive did not assert this in an appeal of the Justice Mrima decision is as unclear to you as it is to me. We are left to simply await the auspicious days when the word of the bench will once again wield its constitutional powers to most effectively promote liberty within our boundaries.