Since President Uhuru Kenyatta ascended to the country's top seat after winning the March 2013 elections, the relationship between the Executive and the Judiciary can only be described as frosty. The Executive has been accused on several occasions of seeking to control another independent arm of the government by dictating what should be done and how justice should be delivered.
President Kenyatta has seen several of his Executive Orders and proposed laws, either overturned or nullified, in his two terms as the Head of State.
The Executive and the Judiciary have been embroiled in a public war of words and cold war where the former has openly frustrated the latter. This can be seen through delay and reduction of funds, spying and arrest of judges and the Head of State declining to promote certain judges.
“As long as I serve as President, I will choose the right over the convenient; I will choose the hard over the easier choice. I am not doing this for myself, but for the People of Kenya, and for posterity," President Kenyatta stated in June 2021, while responding to calls to appoint judges he accused of having integrity issues.
The judges in question were, however, reported to have made rulings that were considered unfavourable to the Executive.
While retiring from office, former Chief Justice David Maraga cautioned the Judiciary from wavering and giving into unlawful demands. The retired CJ, who nullified Kenyatta's 2017 General Election victory stated: “I am sure you have seen the drums of political wars being beaten already. My colleagues, if you waver and do the wrong thing and this country descends into chaos, God will never forgive you. Do the right thing!”
His successor, Martha Karambu Koome, has a time and again reiterated that she would not relent despite seeking to strike an equilibrium in the Judiciary - Executive row.
“We should find a lasting solution. Respect for the Rule of Law and the independence of the Judiciary is guaranteed under the Constitution. No person or authority is allowed to direct the Judicial Service Commission or the Judiciary in the execution of their mandate," Koome warned.
Most of Kenyatta’s proposed laws and Executive Orders have been rejected by courts, with the Judiciary citing them for failing to follow the set constitutional and legal processes. The President's second term in office has seen an influx of such incidents both under Maraga and Koome.
Here are some of the most contested and controversial times the Judiciary has dealt major blows to the Head of State.
Appointment of Six Judges
On Thursday, October 21, High Court Judges, James Wakiaga, George Nduru, and William Musyoka, ordered the President to appoint six judges he declined to promote. These were Justices Aggrey Muchelule, George Odunga, Weldon Korir and Joel Ngugi, to serve in the Appellate Court.
The court further directed Chief Justice Koome to swear in the six if Kenyatta failed to do so in 14 days. The President, through the Attorney General, Paul Kihara Kariuki, disputed the decision at the Court of Appeal, arguing that Koome would be overstepping him in his mandate if she went ahead to swear in the six judges.
2020 Executive Order
The High Court in June 2021, overturned the President’s Executive Order Number One of 2020 declaring it unconstitutional.
The Head of State had rearranged the government, placing sections of the Judiciary, Tribunals, Commissions and independent offices under the Attorney General’s office.
“A declaration is issued that the Executive Order No. 1 of 2020 purporting to organise the Government and set out Judiciary and its Tribunals, Commissions and Independent bodies under Ministries and Government departments as unconstitutional, null and void,” Justice James Makau ruled.
Building Bridges Initiative - BBI
This is perhaps, one of the biggest blows to Kenyatta besides the nullification of his 2017 General Election victory.
The BBI reggae was stopped after the High Court, in May 2021 declared the project null and void. Kenyatta and his handshake partner, Raila Odinga, had invested in the Constitutional Amendment Bill 2020, spending billions of money in campaigns that spanned two years.
The ruling was issued by Justices Teresia Matheka, Joel Ngugi, George Odunga, Jairus Ngaah, and Chacha Mwita.
A subsequent appeal filed at the Appellate Court was further rejected, with Justices Daniel Musinga, Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott upholding the lower court’s decision.
The matter proceeded to the Supreme Court and is awaiting determination.
Appointment of 129 heads of parastatals and board members
In that same month, May 2021, High Court Judges Jessie Lesit, Chacha Mwita and Lucy Njuguna, quashed the government’s appointment of 129 heads of state corporations and board members.
The three-judge bench ruled that the appointments made by Kenyatta and various Cabinet Secretaries in 2018 were invalid and unconstitutional.
CAS jobs and vetting of CS
In April 2021, the High Court also declared the position of Cabinet Administrative Secretary (CAS) unconstitutional.
Justice Antony Mrima further directed fresh vetting of 10 Cabinet Secretaries, Fred Matiang’i (Interior), James Macharia (Transport), Joe Mucheru (ICT), Eugene Wamalwa (Devolution), Charles Keter (Energy), Raychelle Omamo (Foreign Affairs), Adan Mohamed, (East Africa Community), Sicily Kariuki (Water), Najib Balala (Tourism) and Amina Mohamed (Sports).
Mrima ruled that these CSs were reappointed by the President after his reelection in 2017 without parliamentary interviews.
Militarisation of the Kenya Meat Commission
Two months earlier, in February 2021, the High Court ruled against the takeover of the Kenya Meat Commission (KMC) by the Ministry of Defence.
Judge Antony Charo Mrima cited irregularities in the President's order citing the lack of public participation.
The Standard Gauge Railway
In June 2020, the Court of Appeal declared the Ksh500 billion contract between Kenya and China for the construction of the Standard Gauge Railway illegal.
Court of Appeal Judges Martha Koome (current Chief Justice and President of the Supreme Court), Gatembu Kairu, and Jamila Mohammed ruled that the government failed to follow procurement laws while contracting China Bridges and Railway Corporation (CBRC) for the project.
“We conclude, therefore, that the engagement of CRBC was not an obligation arising from “negotiated grant or loan” agreement for purposes of Section 6 of the Act,” the Judges said.
Attorney General Kihara Kariuki filed an appeal at the Supreme Court.
Appointing 41 Judges
Prior to swearing in 34 Judges and rejecting six others in June 2021, President Kenyatta had declined to appoint all these 40 judges in February 2020.
The three-Judge bench ruled that the delay by the Head of State in appointing the 40 Judges recommended by the Judicial Service Commission was unconstitutional.
Justices Lydia Achode, Chacha Mwita and James Makau further ruled that the President's violated the Constitution and JSC Act.
Recruitment of the National Land Commission (NLC) Commissioners
In November 2019, the Employment and Labour Relations Judge Hellen Wasilwa quashed the nomination of Esther Murugi and Tiyah Galgalo to the National Land Commission.
The two had been nominated by the President and already vetted by the Parliament.
“It is my finding that nomination of the two as members of NLC was unconstitutional flouting principles of appointment in public service," Wailwa declared.
National Government Constituency Development Fund
In November 2017, Constitution and Human Rights Division Judges (Isaac Lenaola - now in the Supreme Court, Mumbi Ngugi and David Majanja) ruled that the Constituencies Development Fund Act, 2013 as unconstitutional and therefore invalid.
“The order of invalidity above is suspended for a period of twelve (12) months from the date of judgment. The National Government may remedy the defect within that period and the Constituencies Development Fund Act shall stand Judgment–CA 92.015 3 invalidated at the expiry of the twelve (12) months or maybe earlier repealed whichever comes first.”
