Key questions to ask in Uhuru’s never-ending attack on the Judiciary

President Uhuru Kenyatta and Chief Justice Martha Karambu Koome with Judges of the Environment and Land Court at State House, Nairobi during the swearing-in ceremony of recently gazetted Judges Nairobi on June 04, 2021. [PSCU, Standard]

President Uhuru Kenyatta has thrown the first three punches in what is now a bare-knuckle fight between the Executive and the Judiciary.

The tussle threatens to suck the country’s legal fraternity into a corrosive institutional power struggle that has already given new Chief Justice Martha Koome a rocky start. 

First was President Kenyatta’s broadside against the Judiciary in his Madaraka Day speech in Kisumu on Tuesday. Then came the shocker of excluding six judicial officers in the appointments to the High Court and the Court of Appeal.

The president then went on to swear in 34 of the available 40 judicial officers, thereby throwing the country into a constitutional tailspin. The CJ has had to fend off some of the blows directed at her for perceived participation in a function that has been barred by two court orders.

The presence of the Chief Justice at the swearing-in of the 34 judges appeared to flout orders from the institution she leads. She has since issued a press statement, distancing herself from complicity and urging the president to appoint the remaining six judges. Koome’s discomfiture pertains not just to the rule of law, but to her standing among her peers worldwide. 

Kenyans will be asking how far the antagonistic relationship between two critical pillars of government can go and its implications on justice and rule of law. It is not clear whether the president will isolate and deal with individual members of the Bench as he seems to have begun, or whether the Executive will accost the Judiciary as a solid entity.

In Kisumu, the president did not mince his words. “The Judiciary has tested our Constitution to the extreme,” he said, warning the Judiciary that time had come when it would begin paying for the choices that had been made. This should have sent cold shivers down a few spines. 

In a move that resembles yielding to pressure, the president dropped six judges from the list, for undisclosed reasons. In the past, it has been explained that some of the judges-designate had “integrity issues”.

Attorney General Paul Kihara Kariuki last year told a gathering of judges and magistrates led by former CJ David Maraga, that the president could not abdicate his responsibility of protecting the rule of law by appointing persons of dubitable integrity as judges. 

At the time, Maraga retorted that some people on the list were already serving as judges. There was serious situational irony in the position taken by the Executive. To date, four of the rejected nominees — Justices George Odunga, Aggrey Muchelule, Weldon Korir and Joel Ngugi — are judges of the High Court.

Good governance requires that their sins be made public and their possible separation from the Judiciary started. If not so, the president remains hard-placed to tell why they have been excluded from what looks like merited promotion.    

Some of the excluded judicial officers are reputed to be among the persons at the forefront of a reformist agenda in the Judiciary, a factor that could explain why the Executive has been ill at ease with them.

Justice Muchelule is perceived to have been influential in previous appointments and promotions of what the Executive sees as activists in the Judiciary, during his tenure as a Judicial Service Commissioner. The perception is that the State holds a grudge against him for the appointments of Justice Maraga and his deputy Philomena Mwilu.   

Supreme Court

President Uhuru Kenyatta with newly sworn-in Judge of the Court of Appeal Justice Hellen Amollo Omondi after she took her oath of office at a swearing-in ceremony held at State House, Nairobi, Nairobi on June 04, 2021. [PSCU, Standard]

According to this school of thought, the appointments were made with the possibility of the 2017 election ending up in the Supreme Court.

Maraga and Mwilu were seen to have the grit to withstand Executive pressure. When, indeed, the matter ended up before the Supreme Court in August 2017, it did not go the way the State wanted. Uhuru’s re-election was nullified.

This is a matter the president is yet to fully recover from, as was evident in his Kisumu speech. Citing the matter of projected financial costs of the decisions the courts have made, the president warned the Bench that it would begin paying for such decisions. The time to pay has come. The battle lines are drawn.

Will the Judiciary drop its reformist agenda? Under Maraga, the clarion call regarding the appointment of the then 41 judges was “all or none”. It would seem that the new CJ Koome has agreed to the appointment of most, while leaving out a few. Has the Judiciary blinked, under its new chief custodian? If it has, how far can this go?

Justices Odunga, Ngugi and Korir have distinguished themselves for brutal judicial independence when determining cases. Justice Odunga won the 2015 Law Society of Kenya’s Distinguished Award in the Administration of Justice. In 2018, he won the Jurist of the Year Award.    

Together with Justice Ngugi, Odunga was part of the Bench that condemned the Constitution of Kenya (Amendment) Bill 2020 (BBI Bill) on May 13. That they found President Kenyatta in breach of the Constitution in his involvement with the BBI Bill has raised eyebrows in the Executive.

Moreover, they returned the verdict that the president could be sued in his personal capacity, even when he is still in office. There are plausible human factors in their being sidelined in this week’s appointments.

What remains to be seen is whether they will now be more easy-going in their decisions, or if they will continue with their trademark firmness. Conversely is whether the Executive can go all the way to remove them from office.

From a different perspective, the exclusion of the four judges from promotion to the Court of Appeal, and that of Chief Magistrate Evans Kiago, and High Court Registrar Judith Omange Cheruiyot, is a warning to each judicial officer. “Big Brother is watching you,” that is the message, “and you will personally pay for your decisions.”

Awkwardly placed in the unfolding drama is CJ Koome. She has started her tenure on the tricky foot. She has been flung into the deep end in the game of nerves between the Judiciary and the Executive.

System’s broom

There are those who will want to see her as the system’s broom brought to clean up the Judiciary of activism, real and perceived. At the interviews, she boasted of her negotiation skills and promised to persuade the president to gazette and swear in judicial nominees who he had no issues against, while the rest were otherwise addressed.

It has come to pass within days of her taking up her new posting.

Separately, one of the interviewees for the CJ position, Fred Ngatia, suggested that Justice Koome had not been meritoriously appointed. He complained that interview results had been varied to give her the job, which he believed was his.

This places the CJ in an awkward place, for she has to confront the perception that she could be on a special mission on behalf of the Executive, even when this might not be the case. Beyond this, like all new bosses, Koome faces the challenge of fitting in. She has been appointed to head an institution that is populated with her professional seniors, and where precedence is a delicate matter.

As the latest arrival in the Supreme Court, she will work with a seasoned team that has seen it all. Her colleagues will be watching every twitch on her forehead, every evolution of her hands, and listening carefully to her every word and the inflection in her voice, to determine where she is going and whether they want to go with her. Her situation is compounded by the sense of urgency with which the Executive wants to see a change of direction in the Judiciary.   

The urgency is particularly dictated by the Executive’s desire to get the BBI process back on track, after the Judiciary has derailed it twice – first by issuing orders to bar Independent Electoral and Boundaries Commission (IEBC) from preparing for a referendum before determination of the ongoing contestation in court, and later in the May 13 High Court judgement.

The Executive is running out of time. The country is riding close to the calendar of next year’s General Election. A referendum that would appear to sneak into the calendar and vary some of the provisions in the architecture of government, IEBC and its functions, and the number of constituencies, would be grotesquely out of place and illegal. The Executive will, accordingly, want to unhinge the BBI stalemate in the shortest time.    

The riddle ahead for the Executive is how to extract good results from a Judiciary that it has placed under siege. Uhuru's tenure is also running thin with each passing day. Having thrown the first two salvos, he will now need to go the whole hog.

Yet, for its part, if the Judiciary simply sits back and does nothing, it could run the Executive out of what is left of present tenure. The president could easily find himself out of office in August next year, with a lot of unfinished judicial business and with the possibility of a lot more to come, maybe at a personal level.

It is indeed a tense season for the Judiciary and the Executive, a time to address pending issues of budgets, scorned court orders, bilious appointments and the politics of power and control versus institutional independence. In the process, justice is certainly set to take a beating, even as Kenyans wait to see if any of the judges newly promoted to the Court of Appeal will make it to the seven-judge bench to hear the BBI appeal and with what determination.