Judiciary lays bare president’s power limits

Katiba Institute and the African Centre for Open Governance (Africog) had sued the Attorney General, the Public Service Commission (PSC) and the 129 parastatal chiefs.

In their ruling, the three-judge bench said that there has to be a complete shift in the way of doing things as required by the 2010 Constitution, including state appointments.

“Whereas the past was characterised by open corruption, tribalism, nepotism, favouritism, scraping the barrel and political patronage, the new dispensation requires a break from the past,” ruled the court.

“The Constitution signifies the end of ‘jobs for the boys’ era. Article 10 sets out the values that must be infused in every decision-making process, including that of making appointments,” added the court.

Stung by a string of losses in the courts, President Kenyatta is learning the hard way of the limits to his powers courtesy of the constitution.

Abuse of office

In April, the courts blocked investigations ordered by the president over alleged abuse of office and economic crimes by Kenya Tea Development Agency (KTDA) and its officials. In February, a decision by the president to transfer the Kenya Meat Commission (KMC) from the Ministry of Agriculture to the Defence ministry was stopped, but the order was ignored.

The Executive has also had a number of bills that it sponsored to Parliament declared unconstitutional, same to the Building Bridges Initiative (BBI), a product of the Handshake between the president and opposition leader Raila Odinga. The BBI’s future is currently in limbo as appeals challenging the decision are pending in court.

Thursday’s loss at the High Court was the second instance of the courts declaring the president’s appointments illegal. 

In April, Justice Anthony Mrima declared the position of Chief Administrative Secretary (CAS), which was introduced by President Kenyatta in 2018, unconstitutional.

In a stinging ruling, the High Court judge also directed Parliament to vet afresh 10 Cabinet secretaries who had been re-appointed by the president after his 2017 re-election.

“The term of the President ends with the term of the Cabinet. Those who served between 2013 and 2017 should have been re-vetted to join the Cabinet,” ruled Justice Mrima while directing the AG to report to him within 30 days on the composition of the Cabinet in terms of gender and regional balance.

Although this may look like a political loss for the president, legal experts have praised the courts for flexing their muscles while fingering the AG for failing to provide good advice to his boss.

“I think the Judiciary is reiterating that the right thing and procedures ought to be followed by all levels,” Victor Olao, a constitutional lawyer told the Saturday Nation.

Best legal representation

“The question to ask is not why the government keeps losing, but whether the representatives of the government in court know what they are doing. One expects the Executive has the best legal representation,” said Makueni Senator Mutula Kilonzo.

For lawyer Kibe Mungai, the series of losses by the president in court could have three serious consequences. One is that it could create the impression that the president does not care about discharging the functions of his office in accordance with the law. 

Two, it would create the impression that the AG has not been giving competent advice. “This may not actually be the case because it may be that the president has no appetite for good legal advice,” said Mr Mungai.

Third, and which is the worst for the country, the impression that the president does not uphold the law will diminish the quality of the law whenever it is invoked by the government, and deep mistrust of the government by the people.

Such a thing as the questioning of the Cabinet in court was unheard of during the regimes of presidents Jomo Kenyatta and Daniel Moi.

Unlike his predecessors who enjoyed an almost imperial presidency, President Kenyatta is the first president to run a full term under the 2010 constitution. His decisions have routinely been challenged in the courts with negative outcomes for him. 

Court decisions ignored

However, many of the court decisions have been ignored. The 10 CSs, for instance, are still in office and so are the CASs. KMC is still under the Defence ministry and the government is yet to make a statement on the 129 board appointments. President Kenyatta is also yet to appoint the 40 judges who were recommended by the Judicial Service Commission (JSC) despite court orders.

He similarly refused to appoint and gazette Justice Mohamed Warsame’s election to JSC and the courts had to step in to order that the president be overlooked in the appointment. 

President Kenyatta’s immediate predecessor, Mwai Kibaki, was only head of state for the first three years of the 2010 Constitution. He only suffered three losses in the courts: his attempt to appoint Alnashir Visram as the Chief Justice in 2011, his appointment of county commissioners and, in 2013, when he was ordered to gazette National Lands Commission commissioners.

“As it is, the Judiciary is a level above the two other arms of government. Remember the Executive can have leeway in Parliament, but the legislature is not absolute, whatever it does must be subject to the approval of the Judiciary,” said lawyer Danstan Omari.

“Most importantly, the current Judiciary, which draws its boldness from CJ Maraga, has forced the Executive back to the drawing board, that whatever it does must be looked at from the point of the law,” said Mr Omari.

Mr Mungai says that the string of losses the president has suffered in court is not about his powers being reduced, but his failure to follow laid down procedure and the spirit of the 2010 constitution.

“The president has a lot of powers. But all that the law says is that you follow the process as laid out,” said Mr Mungai.

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