State House Judiciary stand-off, risks Kenyan democracy

Temperatures levels between the Executive and Judiciary are rising. Before we see a return to the levels of conflict experienced in 2017, we need to understand what is at stake and more importantly, how we can reduce the current dysfunctionality. 

A week ago, the Chief Justice and President of the Supreme Court of Kenya issued a blistering statement directed at the President of Republic. Key among the Chief Justice’s concerns was the repeated disregard of court orders by the Executive, the lack of access to State House and the failure of the President to appoint 41 Judges shortlisted by the Judicial Service Commission. 

The President’s chief legal advisor the Attorney General issued a public response within days. In the streets, some fellows hung banners alleging the Chief Justice was covering up corruption in the judiciary, a citizen had lodged a legal petition to have him removed and a netizen had forged and shared a statement stating that the Chief Justice had proceeded on terminal leave. 

There is a sense of déjà vu or what us locals would call “revisiting” here. Three years ago, the reading of the Supreme Court ruling on the Presidential Elections produced even more acute tensions. The toxicity was so unpleasant that it even offended nature that September morning. A swarm of 34bees took to the streets, scattering heavily armed security officers, placard carrying protesters and pedestrians. On that day, it took bees to protect our Supreme Court. We knew then, as we must know now, that we inch towards danger with the current dynamics. 

Malawi is already there. Last week also, Malawian democracy was plunged into a crisis. The Government over-reached itself and announced Chief Justice Andrew Nyirenda was proceeding on leave. It was this statement that the netizen manipulated and shared here in Kenya. Chief Justice Nyirenda’s attempted removal has been internationally criticized. At least forty prominent Malawian and international organisations have jointly issued a strong statement in support of Justice Nyirenda.

Like Malawi, the balance of power between the executive, parliament and the judiciary is hardwired into our constitution. Within the constitution, the independence of the judiciary is one of the clearest principles underpinning the rule of law, public accountability and good governance. Interfering with this in any way, undermines the very system of our governance.

The absence of 11 Court of Appeal judges and 30 High Court judges is crippling the Court of Appeal and the two specialized courts. As the back log in cases increases, it produces further delays in administering justice. Compound this with the disruption COVID-19 has brought to the criminal justice system and the cost of the current stand-off becomes clearer to all.

That the President has chosen to disregard the appointments submitted by the Judicial Service Commission is deeply worrying. On at least two occasions in 2014 and 2019, the High Court has ruled that under the constitution, the President does not have a role in vetting judges. Neither Cabinet Secretaries, Principal Secretaries or Ambassadors, they do not fall under the Executive.

Taken with the complaint that the Executive has refused to release budgetary allocations from the Consolidated Fund directly into the Judiciary Fund, it is hard to see the issues as separate. More worrying, is the argument that this has nothing to do with the 41 nominees but more to do with controlling the appointment of the next Chief Justice when David Maraga retires in 2022.

Several impartial civic actors from the International Commission of Jurists, the Law Society of Kenya and Amnesty International have raised their concern. Averting danger requires the two Presidents to urgently initiate a constructive dialogue with a view to fostering better mutual respect and cooperation.

In this, the President of the Republic is the first among equals. His office controls the use of our taxes and the security agencies. His leadership must now unlock the looming crisis. Our democracy and the nation benefits nothing from a war between the State House and the Highest Court of the land.

Left in perpetual limbo, they risk unleashing the old adage, what leaders do in moderation, followers will do in extremes. Factional interests will drive the temperature upwards to a point that ultimately, we all will lose respect for both offices.

During the Madaraka day speech, President Kenyatta invited us to re-imagine our nationhood, as our constitution is re-engineered by the political class. If a constitutional moment is indeed before us, we must guard against tampering with the fundamentals. It is the red line that sets Kenya apart from Malawi and other autocratic states who cannot imagine several centres of power co-existing with each other. Crossing this line would not also be a great start for our well-campaigned UN Security Council seat.

This article was first published in the Saturday Standard, June 20, 2020