President Uhuru Kenyatta and Chief Justice Martha Koome (second right)] with Judges of the Court of Appeal at State House, Nairobi during the swearing-in ceremony of recently gazetted Judges. On the right is Chief registrar of the Judiciary, Anne Amadi. PSCU
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Uhuru Kenyatta’s relations with the Judiciary worsened in 2021
As the year ends, one of the most memorable moments is the feuding between President Uhuru Kenyatta and the Judiciary over the supremacy of the Constitution.
The conflict kept bursting into the open over adverse orders against the government and Executive decisions, among them the fall of the Building Bridges Initiative (BBI).
Besides receiving injunctive court orders and the nullification of laws and Executive orders, President Kenyatta has lost various legal battles, in what is said to be the basis of his frosty relationship with the Judiciary.
Among the decisions that irked the President was the move by the High Court to block the government-backed plan to make changes to the Constitution. The May 14, 2021 judgment was delivered by judges Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka.
The 785-paragraph judgment was extremely critical of President Kenyatta, with the judges stating that he had no authority to initiate a constitutional amendment process through a popular initiative.
Three weeks later, President Kenyatta selectively appointed 40 judges whose nomination had been pending for two years. He rejected six nominees, among them justices Ngugi and Odunga.
Others were justices Aggrey Muchelule and Weldon Korir. The Judicial Service Commission wanted all four promoted to the Court of Appeal. Others rejected were chief magistrate Evans Makori and High Court registrar Judith Omange, who were promoted to the High Court. President Kenyatta claimed the integrity of the six nominees was tainted.
However, on June 9, 2021, Chief Justice David Maraga (now retired) revealed that some names on the list had been switched.
He said two nominees had been removed from the list and replaced with two others. The controversy started during his tenure and he had been furnished with the list of the alleged tainted judicial officers. He said the six names the President omitted were different from the ones that were rejected at the time.
"The names have changed and they are different. Some names have been added and others removed. Those who were said to have issues have been appointed and others removed from the list. If it was a bona fide allegation, why the shift or why change the list?" Justice Maraga said.
Mr Kenyatta’s quest to amend the Constitution had the backing of ODM party leader Raila Odinga in a process that started with the March 2018 ‘handshake’.
In reaction to the judgment, the President blasted the Judiciary for what he described as irresponsible rulings that negate the people’s will.
"From the nullification of a presidential election in 2017 to an attempt to stop the will of the people as expressed through the BBI, the Judiciary has tested our constitutional limits," he warned during Madaraka Day celebrations, as Chief Justice Martha Koome, who had been sworn into office less than 10 days earlier, listened a few metres away.
And just like after the 2017 presidential election results were nullified, the President said the BBI judgment was not only dangerous but risked courting chaos.
"In fact, any other African country experiencing the political turns and twists we have experienced in the search for greater perfection in our nationhood would have burst asunder."
But he received a second blow at the Court of Appeal after a divided seven-judge bench upheld the High Court decision that the BBI was unconstitutional. The court said the Constitutional Amendment Bill 2020, better known as the BBI, had usurped the people's sovereign power.
Promote amendments
The judges upheld the High Court's finding that the President had no authority to promote amendments to the Constitution through a popular initiative and can be sued with respect to his actions or omissions.
"The popular initiative cannot be used by the government or the people's representatives. Popular initiative is for ordinary Kenyans," said the judges.
Another adverse order is the quashing of the creation of the position of Chief Administrative Secretary (CAS) and failure to subject Cabinet Secretaries reappointed in 2017 to fresh vetting and approval by Parliament.
The High Court in April 2021 found that the CAS position was illegal and unconstitutional. It was also held that the appointment of CAS was subject to fair administrative requirements, hence the recruitment should have been competitive. Most appointees are 2017 election losers.
More recently, in November, the court thwarted an attempt by Director of Public Prosecutions Noordin Haji and his counterpart in the Directorate of Criminal Investigations George Kinoti, to nail Deputy Chief Justice Philomena Mwilu over alleged gross misconduct. A three-judge bench quashed a petition by the pair at the Judicial Service Commission (JSC) in 2019 seeking the removal of Justice Mwilu from office in relation to alleged graft, failure to pay taxes, forgery and uttering a false document.
The court said the duo lacked a legal standing to lodge a petition at the JSC to remove a judge.
Also in November the court put brakes on the planned takeover of the Kenya Medical Supplies Authority (Kemsa) by the National Youth Service (NYS) and layoffs of more than 900 staff.
The court issued a stay order pending the determination of a petition filed by the Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU) through lawyer Henry Kurauka.
In September, High Court Judge Anthony Mrima overturned President Kenyatta’s decision to co-opt Nairobi Metropolitan Services (NMS) Director-General Mohammed Badi into the Cabinet.
The judge declared that the President's decision contravened the Constitution, was illegal and void.
While ruling on a petition filed by Kandara MP Alice Wahome, an ally-turned foe of President Kenyatta, the judge also issued an order of prohibition barring Lt-Gen Badi from attending any Cabinet meetings, Cabinet Committee meetings or discharging any functions of the Cabinet.
In February, the court reversed President Kenyatta's decision to transfer the Kenya Meat Commission (KMC) to the Ministry of Defence.
The court said the move violated Article 10 of the Constitution, due to lack of public participation, but noted that the error could be rectified.
"This court declares the decision constitutionally infirm. The decision is hereby quashed," Justice Mrima ruled on Monday evening, in a case filed by the Law Society of Kenya (LSK) on behalf of the public.
When the President moved the ministerial roles of the KMC to the Ministry of Defence, he said the aim was to breathe new life into the cash-strapped State-owned firm.
In March, the High Court declared that the Executive has no powers to appoint or remove any member of the 24 local tribunals.
The court said tribunals are subordinate courts falling under the Judiciary and the appointment of members by the Executive is illegal and violates the principles of separation of powers.
While ruling on a petition filed by rights activist Okiya Omtatah challenging the appointment of tribunals by the President and Cabinet Secretaries, the court stated that such moves by the Executive infringe the independence of the Judiciary.
“Local tribunals under Article 169(1)(d) of the Constitution must be transited to the Judiciary and the appointment and removal of their members be undertaken by the Judicial Service Commission (JSC),” said Justice Mrima.
He stressed that members of the tribunals fall within the category of “other judicial officers” under Article 172(1)(c) of the Constitution.
In April, a court temporarily halted the decision of the government to close the Dadaab and Kakuma refugee camps, which house nearly 500,000 people. Most of the refugees are from Somalia.
Filed petition
The court issued a stay order following a petition filed in the High Court that challenged a decision by the Interior ministry that urged the UN refugee agency to formulate a plan to close the camps as soon as possible.
In October the High Court declared as unlawful the decision of the government to roll out Huduma cards without conducting a data protection impact assessment ahead of the launch.
The court said the rollout was illegal and unlawful for being in conflict with the Data Protection Act.
Justice Jairus Ngaah said the government should have conducted an impact assessment before processing the personal data of Kenyans and rolling out Huduma cards.
He said Cabinet Secretaries Joe Mucheru (ICT) and Fred Matiang’i (Interior) and the Attorney General acted contrary to the provisions of Section 31 of the Data Protection Act.
“They, in my humble view, have not appreciated the import and the extent of the application of the Data Protection Act, with respect to collection and processing of data collected under the National Integrated Identity Management System (NIIMS),” said the judge.
He was ruling on a petition filed by the Katiba Institute and law scholar Yash Pal Ghai, who argued that it was wrong for the government to roll out the Huduma cards before conducting a data protection impact assessment.
In June the High Court declared unconstitutional President Kenyatta's Executive order that sought to restructure the Judiciary and tribunals into state departments.
Justice James Makau found it was unconstitutional for the President to purport to organise the government and set apart Judiciary commissions and independent offices.
In December, a court temporarily halted the government's plan to require Covid-19 vaccination for access to public services until a petition challenging it was decided.
