President Uhuru Kenyatta’s tirade against the Judiciary for what he said was its propensity to “test our constitutional limits” has put fresh focus on the big test facing Chief Justice Martha Koome.
For a Chief Justice that had staked her performance on protecting the independence of the Judiciary, the comments by the Head of State put her in a difficult position.
And even after the Head of State appointed new judges after a lengthy standoff, the fact that he dropped seven judges, including two who gave the damning BBI verdict, despite a recommendation by the Judicial Service Commission for their promotion, opens a new battle front. This is yet another headache for the new CJ.
The President’s rant against the Judiciary adds to her woes, less than a month after she took the oath of office.
“The independence of the Judiciary in decision making is protected and ring fenced in the Constitution: such that any party or authority attempting to direct how the Judiciary should decide a matter would be in violation of the Constitution,” CJ Koome declared when she was unveiled to the Judiciary on May 24.
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The CJ, who was sworn in just over 10 days ago, is already walking a tightrope as the threats against the Judiciary come at a time she had struck a conciliatory and friendly tone towards the Executive, in contrast to the often confrontational nature her predecessor David Maraga took.
Facing what lawyer Paul Mwangi recently called judicial activism — which he says is the move by judges to use their office to practice and push activist positions, often seen beyond the purview of the law — CJ Koome will also have to strike a balance of what this means to her attempt to mend the relationship between the two arms of government.
“Kenya must have a conversation on limits of judicial power with respect to the other arms of government and whether the Judiciary has been captured by activists,” Mr Mwangi, ODM leader Raila Odinga’s lawyer, who also sat in the Building Bridges Initiative (BBI) secretariat, said after the High Court anti-BBI ruling.
These comments are similar to what the President made in his Madaraka Day speech, in which he accused judges of constitutional rigidity he said was hurting the country economically as well as its bid to forge peace.
He cited what he said was a Sh1 billion loss for every hour of the 123-day 2017 election period — owing to the repeat election ordered by the Supreme Court — arguing that the Judiciary had made the same mistake when a five-judge Bench of the High Court slammed its brakes on the BBI last month.
“If BBI were to be stopped, who carries the burden of choice? On whose shoulders will ethnic majoritarianism rest? And who will carry the burden of losing 30 per cent of our national budget every five years due to the toxic politics that BBI seeks to resolve?” asked the President in Kisumu.
This week, Law Society of Kenya (LSK) President Nelson Havi said the CJ should have reacted to the comments by the Head of State.
“Chief Justice Martha Koome should have by now defended the independence of the Judiciary, threatened by pronouncements of the Executive in an attempt to influence the outcome of the BBI Appeal. Well done President Daniel Musinga of the Court of Appeal for the firm directions on the matter,” Mr Havi said.
The BBI appeal, in which President Kenyatta has personally entered appearance through veteran lawyer Waweru Gatonye, has been set for a four-day hearing between June 29 and July 2.
In Kisumu on Wednesday, when she presided over a function at the Kisumu Children’s Remand, the CJ did not respond to the President’s comments.
Senate minority whip Mutula Kilonzo Jr said the comments by the President — which he said were untidy, tardy and causing confusion — set a bad precedent.
“The President should exercise restraint as much as he can, as head of the Executive. His comments can easily be construed to mean that the Executive should not lose a matter in court. If the appeal is determined in his favour, would it mean that the Judiciary is pandering to the whims of the Executive? Or is the President saying he can proceed irrespective of the rulings of the court?” Mr Kilonzo Jr, also the Makueni senator, told the Nation yesterday.
His Nandi and Elgeyo Marakwet counterparts, Samson Cherargei and Kipchumba Murkomen, respectively, said the President had erred in his comments, and injured the dignity of his office.
“The President should prosecute his appeal in the courts, not on the streets. Judiciary should not be intimidated, stand with truth and justice all,” Mr Cherargei said.
Kikuyu MP Kimani Ichung’wah challenged the CJ and the Judiciary to be firm against threats and intimidations.
“If they bow to threats, Kenyans will have to use whatever means to protect themselves from Tyranny and it may just be too painful for the same people,” said Mr Ichung’wah.
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At the case management conference of the BBI appeal at the Court of Appeal yesterday, lawyer Dudley Ochiel said the President’s comments amounted to contempt of court.
“I seek directions on remarks made by a party to these proceedings using the high office of a state officer and in a manner that will throw whatever we have brought to you into disrepute and will undermine the public confidence in this court to deal fairly in the matters before it. Speaking in a national event, the Madaraka Day, the President made remarks which will be concerning to all of the litigants before this court. We seek to formally bring those remarks to your court, because they amount to contempt of court,” Mr Ochiel, appearing for Dr Jack Busalile Mwimali, an amicus curiae (friend of the court) in the case, told the court.
In his directions, newly-elected Court of Appeal President Justice Daniel Musinga warned parties against prosecuting the matter out of the court, but did not give directions on the contempt finding.
“Let us be civil. Let us respect one another. Let us be balanced in our comments. We have an important judicial process that must be handled in a sober manner. Let us not begin to prosecute or defend our respective positions outside there in the media. Please allow the court to make a fair, totally informed decision without unnecessary attacks and comments by all concerned,” Justice Musinga told the parties.
