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Judicial independence in spotlight amid Executive, Judiciary conflict

**Chief Justice Martha Koome.** [Boniface Okendo, Standard]

Battles between the Judiciary and the Executive have been a common occurrence in Kenya since the adoption of the constitution in 2010, but never before has it been as intense as under President William Ruto’s leadership.

President Ruto is annoyed because the Judiciary stopped some controversial projects, such as the housing levy, which had also faced legal challenges during President Uhuru Kenyatta’s administration when he proposed taxing Kenyans to fund it.

A court blocked that move in 2018, prompting the former president to partner with financial institutions and private developers to build the houses.

Lawyer Omwanza Ombati is among many critics who have raised grave concerns over president Ruto’s vicious attacks against the judiciary this week.

Nation’s history

“Today, we stand at a critical juncture in our nation’s history, as the remarks made by the president cast a shadow over the Judiciary. As Kenyans, we must collectively recall and remind our president that his oath of office is not merely a ceremonial pledge but a solemn vow to respect and uphold the Constitution at all times,” said Ombati.

He added that the Constitution, born of the will of the Kenyan people, stands as the unyielding bedrock upon which the country’s democracy is built.

He referred the president to the statement he made after the 2022 presidential elections when he said: “I urge Raila to respect the ruling of the Supreme Court. The court has ruled that I won, and he must respect the independence of the judiciary and the rule of law.”

Yet, the same Ruto is now the person declaring: “I will defy the court ruling and continue with what I have started.”

The Judiciary has had its fair share of attacks from the Executive in the past, leading to exchanges between lawyers and politicians supporting the Executive.

In 2019, his predecessor, Uhuru Kenyatta, created a rift with the Judiciary when he attempted to usurp the powers of the Judicial Service Commission (JSC) to pick judges and judicial officers for the country’s courts.

He said intelligence agents had provided him secret adverse findings against 41 people the JSC had recommended for promotion to fill various posts, including in the Court of Appeal.

That was in defiance of the constitution because the president has no role in the vetting and appointment of judges and other judicial officers, and to make matters worse, courts of law had ruled as much.

Although he later partly complied by appointing 34 of them, he brazenly continued to block six others because one had died during the standoff.

In October 2021, Uhuru defied the High Court after he was ordered to appoint the six Judges he left out when he ratified the 34 in June 2020, within 14 days.

A three-judge bench ruled that the failure to appoint the six by the president was inconsequential because they would have been deemed to be duly appointed, and further advised that the Chief Justice, in conjunction with the Judicial Service Commission, was at liberty to swear them in.

Judges William Musyoka, James Wakiaga, and George Dulo said the president did not have the power to amend the list of judges recommended by the Judicial Service Commission.

The judges also ordered the president to pay the cost of the suit, saying he was in breach of the Constitution and the Judicial Service Commission Act when he failed to appoint them.

Those that were left out are Justices George Vincent Odunga, Joel Mwaura Ngugi, Weldon Kipyegon Korir, Aggrey Muchelule Otsyula, and Magistrates Evans Makori Kiago and Judith Elizabeth Omange Cheruiyot.

Collision

President Kenyatta again made headlines in January 2018 when he announced the creation of the position of Cabinet Assistant Secretary (CAS) in every ministry, a move that would eventually set him on a collision course with the Judiciary.

After a prolonged court case filed by then-activist Okiya Okoiti Omtatah, High Court Judge Antony Mrima ruled in April 2021 that the creation of the office of CAS was unconstitutional.

Justice Mrima also ruled that some Cabinet secretaries who continued to serve without being vetted in 2017 were in office illegally and that any Permanent Secretary not competitively recruited by the Public Service Commission (PSC) is in office illegally.

Omutata had argued that there was no public participation in the decision to introduce CASs as assistants to cabinet secretaries.

It was notable at the time that the CAS positions had largely been given to politicians who supported Uhuru’s re-election but lost their political bids.

The same fate befell over 50 CASs appointed by President Ruto in March last year after the High Court declared their appointment unconstitutional four months later.

In that ruling, the majority of the three-judge bench stated that there was no adequate public participation and that the framers of the Constitution did not envisage that 50 CASs would deputize 22 Cabinet Secretaries.

Participation

“Was there adequate participation? The petitioners had argued that the appointment did not adhere to public participation, especially in the 27 CAS. The judges say that there was no public participation in the appointment of the 27 more CASs,” said Judge Kanyi Kimondo.

Fast forward to the current standoff, which is becoming the most embarrassing clash between the Judiciary and the Executive after the president declared that judges opposing his pet projects were on the take.

Chief Justice Martha Koome has urged judges to continue exercising their duties without fear and to uphold their fidelity to the Constitution.

Justice Koome, who also serves as the president of the Judicial Service Commission, stated that the JSC will continue to promote and facilitate judicial independence as provided for under Article 172 (1) of the Constitution.

She noted that judges and judicial officers were being subjected to criticism and vilification for issuing court orders that are perceived to be against state programs and policies.

“Judicial authority is safeguarded under Article 160 (1), which judges and judicial officers should live up to,” said Koome.

Many freedoms

During the single-party rule, the courts openly sided with the government in denying Kenyans many freedoms, including that of speech, press, and even worship, among others.

In 1989, it was reported that a judge declared the entire bill of rights inoperative and unenforceable, thus stripping all Kenyans of their constitutional protections.

The dispute over the 2007 presidential elections also emerged as a result of a lack of faith in the independence of the judiciary, leading to the opposition mobilizing masses on the streets, resulting in the death of more than 1300 people.

That led to the expediting of the promulgation of the 2010 constitution, which the judges are freely applying today without interference from the Executive.