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Open disregard for court decision by president is a path to anarchy

**Former Makueni Governor Kivutha Kibwana**. [Denis Kibuchi, Standard]

President William Samoei Ruto stirred controversy recently by asserting his intention to defy court orders perceived to obstruct the government’s developmental initiatives, particularly in respect to universal health coverage, infrastructural development, the housing levy, and other taxation matters.

Ruto argued that some corrupt judges were being used to subvert his development agenda, without naming those accused of sabotage or their accomplices. Consequently, the president’s accusations painted the Judiciary as tainted and thus lacking legitimacy.

In a rapid response, the Law Society of Kenya (LSK), the senior bar, civil society, prominent opposition leaders, and other civic-minded Kenyans joined issue with the president.

Subsequent to the president’s declaration, some citizens and foreigners may pose the questions: Can they then get justice within Kenyan courts? Do judges collude with lawyers? Are there cartels ensconced in the Judiciary which obstruct the delivery of justice especially for indigents and other disadvantaged litigants? Does one have to shop for suitable courts and judges where they believe justice will be served, thus avoiding courts and judges accused of corruption? Is Kenya’s justice system thoroughly neutered or is the Judiciary the vigilant protector of the Constitution and citizens’ rights?

Despite challenges to the president’s remarks, a majority of critics acknowledge the need to combat corruption within the Judiciary and other sectors, but emphasise that such efforts should strictly adhere to the rule of law. Existing legal and institutional frameworks, as outlined in the Constitution and ordinary law, provide mechanisms to address corruption.

Remedial institutions, such as the Ethics and Anti-Corruption Commission (EACC), the Directorate of Criminal Investigations (DCI), and the Directorate of Public Prosecution (DPP), have the power to investigate and prosecute individuals suspected of corruption, including judges, other judicial officers, as well as other suspects from the public and private sectors.

Discipline for judges is within the purview of the Judicial Service Commission, where the president has nominees sitting as members. The Constitution also allows for the removal of errant judges through specially appointed tribunals.

A major risk associated with the route the president is adopting, and indeed President Uhuru Kenyatta travelled the same path, is to announce in public that he has beef with the Judiciary. If a targeted judge claims his or her prosecution is at the behest of the Executive, they may argue lack of fair trial.

If the Judiciary feels under unwarranted threat, it might retract, and recoil like a tortoise believing the indiscriminate prosecution of judicial officers is a mere witch-hunt. This may lead to the Executive employing unconventional approaches against the Judiciary.

Perhaps the most significant impact of the President’s statement is its potential adoption by citizens, leading to their choice of which court decisions to obey or expressing distrust in allegedly corrupt courts, potentially resorting to self-help in disputes, opening Pandora’s box and door to disorder.

The Kenyan Constitution emphasises that no one is above the law, with citizens as sovereign and the Constitution supreme. National values in Article 10, including the rule of law, constitutionalism, good governance, integrity, accountability, transparency, and human rights, bind all state officers without exception.

Article 3(1) states that every person must respect, uphold, and defend the Constitution. Establishing a government that disobeys court orders contradicts Article 3(2), deeming any such attempt unlawful.

At the national level, three branches or arms of government exist: Executive, Legislature, and Judiciary. The three branches are equal in authority, and interdependent, with none allowed to encroach on the constitutional mandate of the other even if the Executive is considered as first among equals.

The doctrine of the separation of powers is pivotal for ensuring democratic governance. Another critical principle is the independence of the Judiciary, ensuring that its decisions are grounded in legal philosophy, facts, and the law. Anyone aggrieved by a judicial determination has the right to appeal up to the highest court.

If the final decision is based on ordinary law or judicial precedent, the Executive, if necessary, can propose an amendment within the constitutional framework. If the penultimate court decision is rooted in a constitutional norm, an aggrieved Executive or individual can seek constitutional amendment according to Articles 255-257.

For the Executive to refuse to comply with court orders is tantamount to encroaching on judicial function. Article 159(1) entrusts judicial authority to courts and tribunals established by the Constitution.

When campaigning as deputy president in 2022, Ruto garnered support from a significant number of lawyers by pledging to uphold the rule of law, safeguard the independence of the Judiciary, appoint judges on hold by his then boss, eradicate extrajudicial killings, establish the Judiciary fund, secure financial autonomy for the police department, and enhance economic, social, cultural rights under Article 43 through the ‘bottom-middle-up’ paradigm.

In every campaign platform, he instilled hope and proved persuasive, even swaying some sceptics. The legal fraternity, among other Kenyans, is disheartened by this apparent reversal.

The same Judiciary that faced severe criticism just over a year ago, despite immense Executive pressure, adhered to its duty and delivered a favourable verdict for the elected president in 2022. The historical trend of disparaging the Judiciary and the electoral commission, often without a justifiable course should end. Usually, these two institutions must at the end of a contest declare a winner and a loser. We must learn to lose in dignity.

During the Constitution-making process spanning from the 1980s, 1990s, 2000s, and culminating in 2010, emphasis was placed on ensuring parliament’s robustness for overseeing the Executive. Newly established constitutional commissions were perceived as additional guardians of citizens, exercising some power previously held by the Executive. This was seen as a strategy to curb the authoritarianism of the imperial presidency.

The parliament, encompassing both the government and a substantial faction of opposition members, appears to have fallen under the sway of the Executive. Citizens now view the August House as a voting machine manipulated by the Executive, associating anti-people’s measures with actions jointly taken by the government and opposition.

The current commissions, in comparison to those established immediately after the 2010 Constitution’s promulgation, exhibit significant deviations in performance. Many are filled with individuals who are compliant. Commissioners or occupiers of independent offices displaying any form of “rebellion,” such as the Controller of Budget and Auditor General, face vilification, but legal amendments are strategically diminishing institutions.

Emasculating the Judiciary would render our constitution largely toothless, jeopardizing the vital project of its thorough implementation. Attacking and subduing the Judiciary is a dual assault on devolution. Since 2013, the Judiciary has steadfastly safeguarded devolution by resisting measures proposed by the Executive and passed by parliament that undermine it.

The importance of a supportive legal climate for international investments hinges on the justice system’s credibility. Investors, both domestic and international, are hesitant to invest where court decisions are disregarded.

Clearly, the Executive should not be hindered from discharging its development agenda. If courts block such implementation due to corruption or self-serving reasons, then those involved must be subjected to speedy judicial proceedings.

The Executive must refrain from intimidating organised civil society and public interest litigators like Senator Okoiti Andrew Omtatah. In democracies, such activists are invaluable for enforcing people’s rights and do complement the work of government and opposition.

President Ruto’s recent comment on the meaning of the ceremonial sword was unfortunate. The Constitution provides the rule book of governance, while the sword symbolizes the duty to protect the country from external aggression. That is why an incoming president does not swear on the sword.

The metaphor that the sword is not for ‘cutting vegetables’ sends a chilling message to mama mboga and all other Kenyans. President Ruto should consider returning to his persuasive 2022 campaign spirit, recognising that today’s Kenya differs significantly from the Kenya of the 70s, 80s and 90s.