President William Ruto’s recent tirade against the Judiciary over the decision by the High Court to suspend the implementation of Finance Act 2023 puts him in sharp contrast with the man who praised the courts when he assumed power.
In his acceptance speech on September 13, 2022, just after taking the oath of office as Kenya’s fifth President, one of President Ruto’s buzzwords to Kenyans was respect for the rule of law and court decisions.
It should not be forgotten that his liking for the courts came after the Supreme Court had ruled to uphold his victory in the August 9, 2022 presidential election against Azimio leader Raila Odinga , his main challenger in the election, who had filed the petition.
The Supreme Court had also previously ruled in his favour by upholding the decision of the High Court declaring the Building Bridges Initiative (BBI) to amend the 2010 Constitution unconstitutional.
Dr Ruto, then the Deputy-President, openly opposed the BBI process that was being pushed by President Uhuru Kenyatta and Mr Odinga.
Mr Kenyatta had refused to appoint seven High Court judges to the Court of Appeal, citing integrity issues.
In a bid to “reward” the Judiciary, President Ruto did not waste time appointing the seven judges within seven days as he had promised during campaigns.
The President also ensured that the Judiciary gets Sh4 billion in enhanced allocation in the current financial year.
So, why has the President gone against his own dictum of "respect to court decisions whether they please you or not”?
His recent attack against the Judiciary came on July 11, just hours after the High Court had extended conservatory orders suspending implementation of the Finance Act 2023 until the case filed in court is heard and determined.
“Let them (courts) leave the Finance Act and allow us to carry on with our plans to develop the country,” President Ruto spoke in Embakasi as he dished out title deeds to residents.
The President went on to term the action by the court as an attempt to sabotage the government agenda.
Taking the cue from the President, Kenya Kwanza MPs have now taken over in attacking the Judiciary.
Governance expert and political analyst Barasa Nyukuri says that the goodies extended to the Judiciary was an attempt to make it rule in favour of the government on any matter in court.
“By appointing the seven judges, enhancing the Judiciary budget, among others, the President thought he had the Judiciary in his armpit. He was wrong,” says Mr Barasa.
Other than the Finance Act ruling, the court has also determined that the chief administrative secretary (CAS) position is unconstitutional, a decision that has rubbed the President the wrong way.
President William Ruto poses with newly sworn judges of the Court of Appeal, from left, Joel Ngugi, Weldon Korir, Aggrey Muchelule and George Odunga at State House Nairobi on September 14, 2022.
President Ruto had appointed 50 individuals, most of them politicians who lost in the last election as CASs.
Law Society of Kenya (LSK) President Eric Theuri has already castigated the Kenya Kwanza administration for attacking the Judiciary over the recent rulings against the government.
Mr Theuri said that it cannot be normal for the Kenya Kwanza administration when the courts rule in its favour but wrong when the court decisions appear to go against the government’s aspirations.
“Much as they have the freedom to express themselves on court judgments, they must exercise it responsibly in a manner that does not ridicule, demean or advance threats to the institution of Judiciary and its officers,” said Mr Theuri.
His comments come after Nandi Senator Samson Cherargei, a close ally of President Ruto, said that the Judiciary has gone “rogue” following the High Court ruling on July 4, 2023, which declared that the CAS position unconstitutional.President Ruto appoints 20 new High Court judges
“It’s true that the Judiciary has gone rogue by declaring the CASs positions unconstitutional,” said Mr Cherargei.
The MP’s comments make the Sh4 billion increased funding to the Judiciary in the 2023/24 financial year appear as if it was a favour from the Kenya Kwanza administration and therefore, a bait for favourable rulings.
But the LSK boss reminded the Kenya Kwanza administration that allocation to Judiciary is a right and not a favour to rule in the interests of the government of the day.
“If they are unhappy, they can pursue the right of appeal. Let them not make it appear that the Sh4 billion increased funding to Judiciary was a bribe for favourable rulings."
“Allocation to Judiciary may have improved in the current financial year but it is way below the threshold required for the Judiciary to dispense its mandate. They should also not forget that the courts have ruled in their favour in certain instances. They should not expect the courts to always rule in their favour,” said the LSK boss.
Former Mandera Central MP Abdikadir Mohamed, who played a role in midwifing the 2010 Constitution, backed the court ruling on CASs.
“It was the desire of the Constitution for a limited number of state officers. I agree with the court ruling,” said Mr Abdikadir adding; “the spirit that limited the number of Cabinet secretaries and did away with the assistant ministers must be followed.”
Other than the decisions of courts on Finance Act 2023 and CASs, the government’s appeal against registration of Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) as an association was thrown out at the Supreme Court early this year.
The Finance Act is enacted every financial year to provide for the taxation regime to finance the country’s budget.
This year’s Act was to take effect on July 1, 2023 but the court suspended it.
The attack against the Judiciary is not waged by the President alone. Senior members of his administration led by Prime Cabinet Secretary Musalia Mudavadi have not hidden their disdain for the courts.
During the thanksgiving ceremony for National Treasury Principal Secretary Chris Kiptoo on July 1, 2023 in Elgeyo Marakwet, Mr Mudavadi said: “It is important that the Judiciary becomes alive to what we call public interests. That all the time, public interests must be taken into account when decisions are made. The economic recovery process is against time. The President has set the pace. We cannot afford to lose any more time.”
As Mr Mudavadi spoke, leader of majority in the Senate Aaron Cheruiyot (Kericho) and Kiharu MP Ndindi Nyoro, who were also present at the thanksgiving event, did not have kind words for the courts.
“We want our Judiciary to be mindful of the fact that we have a country that must run,” said Mr Cheruiyot.
But even as the Kenya Kwanza brigade attacked the recent court decisions, some Kenya Kwanza legislators took a different position.
Kakamega Senator Boni Khalwale (majority whip) and Aldai MP Maryanne Keitany distinguished themselves as the voices of reason.
“It’s not about the affected 50 CASs but the rule of law and I want to appeal to my UDA party members as such,” said Dr Khalwale as he reminded his colleagues of the previous court rulings that favoured the Executive.
“We were happy when the court ruled against the BBI that we opposed. We were happy again when the court ruled in our favour in the 2022 presidential election petition. Let’s look at these rulings as a matter of the rule of law. It is not impossible for us to find a role in government for the 50 loyal members of our party,” noted the Kakamega senator.
Ms Keitany said that appeal should be the only weapon for the losers in a case as opposed to demonising the courts.
“It is not that the judges are rogue but the evidence produced that led to the decision they made. The judges were within their domain to make the ruling they made. But the beauty of the law is that there is a window for appeal,” she said.
“The aggrieved party, which is the Executive, now has 14 days to appeal against the decision,” she added.
In March this year, some Kenya Kwanza legislators threatened to push for the formation of a tribunal to investigate the conduct of Supreme Court judges over the ruling that allowed the registration of an LGBTQ organisation in the country.
MPs Gideon Kimaiyo (Keiyo South), Timothy Toroitich (Marakwet West), Adams Kipsanai (Keiyo North), David Kiplagat (Soy), Julius Ruto (Kesses), Abraham Kirwa (Mosop) and Reuben Kiborek (Mogotio), faulted the judges’ decision, warning that it erodes the African family unit because it threatens to cause a breakdown of the society.
