President William Ruto has been in office for 10 months but he has already felt the bitter taste of loss - dished out in four servings by the courts.
Last week, the High Court quashed his appointment of 50 chief administrative secretaries (CASs), which was to welcome the suspension of the controversial Finance Act, 2023, pending the determination of eight cases challenging its legality.
That came on the heels of the suspension of the Shakahola Commission of Inquiry and an earlier stay of Ruto’s lifting of the ban on genetically modified foods.
The president’s decision to allow cabinet secretaries to appear in Parliament is also facing a legal challenge. Raila Odinga’s Azimio la Umoja-One Kenya has opposed the move in court, terming it an attempt to amend the Constitution through the backdoor.
Ruto also has to defend his decision to allow his advisors and United Democratic Alliance Secretary General Cleophas Malala to sit in Cabinet. He potentially faces a similar situation to the one former President Uhuru Kenyatta met when the High Court quashed his move to allow former Nairobi Metropolitan Services Director General Lieutenant General Mohamed Badi to attend Cabinet meetings.
The Head of State finds himself in a spot occupied by his predecessors, who have had to contend with adverse court decisions. His presidency owes to his victory at the Supreme Court, which upheld his election amid praises from the Kenya Kwanza leadership.
“I thank the Judiciary, and the Supreme Court in particular, for staying strong as the shining beacon of constitutionalism and the rule of law even in the most daunting of circumstances – and you know what I mean,” Ruto said last September.
In February, the Employment and Labour Relations Court paved the way for the appointment of CASs, much to the president’s satisfaction keen to reward allies.
Ruto had celebrated the courts when they successively voided the Building Bridges Initiative Constitutional amendment push fronted by Raila and former President Uhuru Kenyatta.
There were signs that Ruto would enjoy cordial relations with the Judiciary when he hired six judges Uhuru refused to appoint. He also promised to enhance the Judiciary Fund his predecessor implemented, pledging a higher budget for the Chief Justice Martha Koome-led arm of government.
The recent spate of defeats promises an acid test for Ruto in his relations with the Judiciary, an arm meant to offer checks and balances to the Executive and Parliament.
“The expectation of this government is that it will have a clear respect for the rule of law and adore the concept of separation of powers,” said former National Assembly Speaker Kenneth Marende.
Constitutional lawyer Bobby Mkangi argues that the expectation is high on Ruto to respect the rule of law since he made the matter a campaign subject as he blasted his predecessor for “weaponising the criminal justice system”.
“The president posed as an alternative to his predecessor, who took a stance against the Judiciary. He put the issue of the rule of law at the forefront of his campaign messaging and there were many who swayed in his favour because of that. If he seems to be carrying on with the usual, it will dent his image as a politician, leader and as a person,” said Mkangi.
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Recipe for anarchy
Some of Ruto’s allies have already faulted the ruling on CASs, which Attorney General Justin Muturi has said he would appeal.
Nandi Senator Samson Cherargei termed the Judiciary “rogue”, stating it was led by the “incompetence of Chief Justice Martha Koome” in a series of tweets.
“Before the courts have ruled that the government could appoint 23 CASs but yesterday, the same courts ruled that the appointment of CASs is unconstitutional. This erodes integrity and public confidence of judicial processes in the country. CJ Martha Koome-led judiciary is sliding into abyss of partiality and cartels capture,” he said in one of the tweets on his official Twitter handle.
Marende views such comments as a “recipe for anarchy” that threatens order and the nation’s development.
“These comments are coming from the top leadership, the top tier of government. What they are doing is inciting those they lead not to believe in the concept of the rule of law,” the former speaker stated.
Mkangi, who argues that it is the Kenyan politician’s nature to blame others when they pay for ignoring warnings, terms such attacks “unfortunate”.
“It is dangerous in an involuntary, post-colonial nation like ours. Building this nation has been an experiment for the last 60 years because we have no hegemony. Kenya is essentially a multi-national state and we have to appeal to other commonalities to build the nation, and that is where our Constitution comes in. If we keep on wrestling with the principle of the rule of law, we are eating into the Constitution and threatening our unity because we then become beholden to other values,” said Mkangi.
In the 10 months since he assumed office, the president has blown hot and cold on respecting judicial decisions. The most recent controversy has been the implementation of new fuel prices by the Energy and Petroleum Regulatory Authority (Epra) - an independent body though it is - despite a court order preventing the execution of the Finance Act 2023, which introduced a 16 per cent value-added tax in place of the previous 8 per cent.
A direct confrontation with the courts was the initial reported disregard of the order barring CASs from assuming office. Days after the High Court stayed their assumption of office, some occupants of the now defunct role had been operating as usual.
When the High Court quashed the new National Social Security Fund rates in October last year, Ruto blasted the judiciary for coming in the government’s way of delivering for Kenyans.
Some of his allies picked his cue, such as Deputy President Rigathi Gachagua, who recently seemingly attempted to direct courts on Trade Cabinet Secretary Moses Kuria’s feud with the media.
“The same way the courts have been persuaded from holding the press to account, I want the same courts, when leaders go to court to restrain the same media from criticising leaders, the courts must give the same orders,” Gachagua said recently, months after Interior Cabinet Secretary Kithure Kindiki said controversial preacher Paul Makenzi would remain in police custody in spite of what the courts may decide.
Show of respect
But Kenya Kwanza has also acted in ways that show it respects court rulings. In Parliament, for instance, National Assembly and Senate speakers Moses Wetang’ula and Amason Kingi respectively have delayed certain decisions, such as effecting leadership changes on the minority leadership in either house pending the determination of disputes.
In November last year, Wetang’ula stopped the vetting of principal secretaries in compliance with a court order, disregarding the precedent set by Attorney-General Justin Muturi who, as speaker of the National Assembly, was adamant that the courts could not gag Parliament from concluding its legislative and oversight duties.
The opposition, too, has piled pressure on the Judiciary, celebrating favourable rulings and criticising adverse judgements. While Raila lauded the Judiciary as independent when they voided Uhuru’s reelection in 2017, his views on the Supreme Court were different when it upheld Ruto’s win last year and on the president’s subsequent actions related to the Judiciary.
“There is clearly a push by the Executive to own the Judiciary through illegal actions that amount to bribery. That is the reason for the rush to appoint six judges and to allocate money to the Judiciary,” the former prime minister said last year.
Raila has defended his criticism as necessary in any democracy. Gachagua, too, has made similar remarks recently.
Amid the initial wave of victories for Ruto, there were accusations from the opposition that the president had compromised the Judiciary, in what Azimio la Umoja-One Kenya leaders termed an attempt by the president to entrench tyranny, describing it as “judicial capture”.
Disregarding judicial decisions would generally be seen as a violation of the rule of law and a breach of the separation of powers. In functioning democracies, the Judiciary plays a crucial role in interpreting the law and ensuring its enforcement.
It is generally expected that all parties, including the government, will follow court orders. That has not always been the case in Kenya, where the political class has attempted to interfere with the Judiciary with varied success.
When faced with adverse court decisions, Uhuru’s government would occasionally ignore some. They include several orders on the return of lawyer Miguna Miguna, who was ejected by the State in February 2018, making futile attempts to return to Kenya despite court instructions that the State should facilitate his return.
Another infamous disregard of court orders was Uhuru’s refusal to appoint judges, a matter that many in the Judiciary and civil society space faulted as an infringement on the independence of the Koome-led arm of government. Observers read the move as the “revisiting” the former Head of State promised when the Supreme Court nullified his reelection in 2017.