Raila now blows hot and cold in debate on judicial impasse

ODM leader Raila Odinga addresses residents of Wagai in Siaya County on May 30, 2021. [Collins Oduor, Standard]

After sitting on the matter for a week, opposition leader Raila Odinga emerged yesterday to pronounce himself on the ongoing tiff between the Judiciary and Executive, blowing hot and cold at the same time, and giving a pass to his handshake partner, President Uhuru Kenyatta.

In a statement widely shared, Raila sidestepped calls on President Kenyatta to appoint six judges recruited by Judicial Service Commission (JSC), instead asking him to table whatever evidence he has to the commission justifying his refusal to appoint them.

Raila said Kenyans deserve to know the reason behind the president’s reluctance, a day after Chief Justice Martha Koome reiterated her earlier call on Uhuru to appoint the six. JSC position, also extolled by various other bodies in the justice sector, has been that the president must appoint all judges handed to him.

The Orange Democratic Movement (ODM) leader is the latest high-profile figure to join the growing list of those piling pressure on the president over his controversial action.

“In the current stand-off over the refusal by the president to appoint six out of the 41 judges nominated by the Judicial Service Commission for superior courts, I challenge the Executive to share with the Judiciary and the public the concerns and evidence that led to the rejection of the six,” his statement read in part.

But while Raila’s challenge is perhaps the most direct message to the president since their March 2018 handshake, it seemingly endorsed the assertion that the president could lawfully refuse to appoint the judges, despite court judgements that have ruled that he cannot.

He kept off the matter of whether the president should have appointed them, choosing to instead offer a treatise on why the three arms of government need each other.

Dependent arms

“The fact is that no one branch of government can help Kenyans solve their problems without help of the other. No one institution can become the sole and undisputed liberator of the people of Kenya. Any attempt by any arm of government to outshine the others or to show that it is the one that matters the most only works to hurt the common Kenyan and interests of the nation,” he said.

In the last few months, the Executive has lost major cases in court including this week’s declaration the Executive Order No.1 of 2020 as unconstitutional. The highlight of the losses was declaration last month that Uhuru and Raila’s pet project, Building Bridges Initiative (BBI) Bill, was a nullity in law.

Raila’s yesterday stance also collides with a position held by many legal experts, including his ally Otiende Amollo, who said the president had no powers to refuse to appoint judges recommended by the JSC. Ben Sihanya, a professor of constitutional law also affiliated with Raila, held a similar view.

The statement was roundly condemned on the social media platform where it was released, with people saying it sanitised a violation of the law. Others thumbed up the former premier for speaking sense to warring arms, and for rising above their squabbles.

And Raila’s new position also departed from his previously firmly-held stance on the subject of presidents sticking to the law in as far as constitutional appointments are concerned.

In 2011, he rejected former President Mwai Kibaki’s nomination of Chief Justice and other state officers, terming the move unlawful since he had not been consulted, as required by the constitution under the National Accord.

“Without a doubt, this decision has thrown the country into a major constitutional crisis and may be the beginning of the end in respect of the implementation of the reform agenda if not corrected and reversed,” Raila said then.

Anger at Mutunga

More recently, his party condemned President Kenyatta’s reluctance to appoint some 14 judges out of a list of 25 in 2014. President Kenyatta later and appointed the rest in 2015.

Yesterday’s statement came a day after he attacked former CJ Willy Mutunga for faulting the president. The attack, delivered in Mutunga’s Ukambani backyard, was interpreted to mean that he was standing with the president on the matter.

“We have stood for justice, myself and Kalonzo. In 2013, we took evidence of electoral theft, they said we were late. Former Chief Justice Willy Mutunga dismissed us, now he is pontificating about justice,” Raila said on Friday during the burial of former Kibwezi lawmaker Kalembe Ndile.

Earlier this week, Mutunga’ successor David Maraga condemned the President, event calling for his impeachment.

Uhuru has previously defended his actions by saying he possessed adverse intelligence reports on some of the nominees in the previous list of 41 judges recruited by the JSC.