Uhuru blasts Judiciary for judgment against BBI

President Uhuru Kenyatta used the Madaraka Day celebrations to blast the Judiciary over what he termed as irresponsible rulings that negate the people’s will.

In what could worsen the already sour relationship between the Judiciary and the Executive, Uhuru said the recent judgment overturned the people’s will, diminished their power and stifled efforts to fix ills that have bedevilled the country.

“From nullification of a presidential election in 2017 to an attempt to stop the will of the people as expressed through BBI, the Judiciary has tested our constitutional limits,” the President said.

Speaking during the 58th Madaraka Day celebration at Jomo Kenyatta stadium in Kisumu on Tuesday, Uhuru said the Judiciary has not considered the spirit of the law, thus making decisions whose impacts are dire.

Burundian President Evariste Ndanyishimiye was the chief guest at the event that marked 58 years of the country’s self-rule.

Deputy President William Ruto, ODM leader Raila Odinga, first lady Margaret Kenyatta, Chief Justice Martha Koome and speakers Justin Muturi (National Assembly) and Kenneth Lusaka (Senate) attended the fete.

“Their decisions must consider the letter of the law, but fundamentally the spirit of the law must also guide them. And I say so because the spirit of the law is the light that will illuminate the burden of the choices they make,” he added.

The President cited the recent ruling by the High Court that dumped the push to amend the Constitution through the Building Bridges Initiative and the nullification of the 2017 presidential election.

Last month, a five-judge bench slammed brakes on the constitutional amendment push driven by the BBI, terming it unconstitutional, null and void.

The judges also faulted the President for breaching the Constitution that he swore to defend.

But the President and his handshake partner Raila Odinga have already appealed the ruling.

The duo has assembled a team of seasoned lawyers including senior counsel and Siaya Senator James Orengo, Rarieda MP Otiende Amollo and Paul Mwangi to fight for the BBI’s survival in the Court of Appeal.

On Tuesday, Uhuru put the Judiciary on the spot, questioning whether it took into account the consequences of the decision to quash the BBI drive.

Uhuru said the BBI was meant to bring political stability by building bridges, creating inclusive politics and ending ethnic majoritarianism that have stagnated the country’s progress.

“If the court had subjected its decision to stop BBI to a cost benefit analysis, in other words if it had considered the burden of choice, then, these are the questions the Judiciary would have asked:

“If we are in a constitutional moment, is a decision against BBI a decision in support of the status quo?” he posed.

“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?” he further asked.

The President said that by citing technicalities in its ruling, the court only served to deny Kenyans their sovereign and supreme right to vote at the referendum.

“The moral foundations of justice demand that the Judiciary bears the burden of choice and the consequences thereof; especially where the burden of judicial choices is proposed to be carried by the people,” he reckoned.

“For every decision they make, the spirit of the law will lead them to the consequences of their choices. If the Judiciary is guided by the spirit of the law, political stabilisation will be easy to achieve,” he said.

Uhuru added that for the 123 campaign days in 2017, following the nullification of his re-election in 2013 by the Supreme Court, the country lost about Sh1 billion every hour.

"The question the national conversation should ask is, who carried the burden of this choice? Was it the Judiciary or the people?

“The truth of the matter is, it is the people who carried the burden of this choice. Development programmes meant to make a difference in their lives had to be shelved; courtesy of the decision by the Judiciary,” he added.

The President’s scathing attack on the judiciary at the national event in the presence of the new Chief Justice Koome could worsen the already frosty relationship between the Executive and the Judiciary.

But Deputy President William Ruto, who spoke before his boss took to the stand, called for respect FOR government institutions, including the Judiciary, to safeguard democracy.

"It is important that we have a robust Legislature, performing Executive and independent Judiciary so that we can all celebrate the fruits of the rule of law, not rule of men," Ruto said.

The DP added, "It will be an act of great betrayal if we allow ethnic bigotry and personality cult to destroy the Constitution".

In 2017, Uhuru and Ruto attacked the Judiciary after the Supreme Court nullified their re-election citing illegalities and irregularities in the process.

“We shall revisit this thing. We clearly have a problem with our Judiciary. Who even elected you? Were you? We have a problem and we must fix it,” he said soon after the elections were nullified in September 2017.

Since then, he has publicly complained about court decisions that have among others stopped government projects and declared as illegal the appointment of Chief Administrative Secretaries.

“By creating the office of CAS without consideration for costs of manning and running it, article 201 (d) of the Constitution which categorically provides that public money shall be used in a prudent and responsible way was violated,” activist Okiya Omtatah, who had filed the case, argued.

Last week, the High Court quashed the President’s appointment of 129 heads of state corporations and board members, saying the appointments were illegal.

The Judiciary has accused the President of refusing to appoint 41 judges recommended to him by the Judicial Service Commission in 2019.

The President reportedly questioned the integrity of some of the names sent to him for appointment.

But JSC insisted that it conducted interviews and settled on the 41, adding that the President was bound by its decision.

On Madaraka Day, Uhuru fell short of saying the Judiciary has abused its powers and independence given to it in the Constitution.

“Our Constitution is not a yoke around our necks, rather it is a mighty sword that can break the chains that limit us. The moral foundations of justice demand that the Judiciary bears the burden of choice and the consequences thereof,” he said.

The President said that just like any other arm, the Judiciary is bound to advance the interest of the country and help stabilise politics.

“We must endeavour to pursue political stabilisation by any means necessary. I say so because stability is the life-blood of our republic. What we have built for 58 years, can be destroyed in one day of political instability,” he said.