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OGOLA: Judiciary and ties to other state powers in modern democracy

Independence not ideal as President has said he is unstoppable on hearing every ruling made against the Executive, and taking action.

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by PROF FRED OGOLA

Siasa28 March 2024 - 12:32
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In Summary


  • President rewards or punishes Judiciary for rulings in Executive’s favour, or against him. 
  • Nearly 90 promises in KK manifesto not aligned with the Constitution, legality found wanting, Judiciary vilified.
Incoming Chief Registrar of the Judiciary Winfridah Mokaya in a group photo at the Supreme Court after her swearing-in ceremony on March 25, 2024.Courts rule on issues of great economic and political importance.

Throughout the run-up to the 2022 general election until today, the Kenyan Judiciary has been in the headlines. First, it was mainly due to refusal by former President Uhuru Kenyatta, to appoint six judges, namely Weldon Korir, Aggrey Muchelule, George Odunga, Joel Ngugi, Evans Makori and July Omange. He cited integrity concerns as the reason, though he didn’t give much detail. Consequently, they were left out when 34 judges were sworn in.

As soon as President William Ruto was sworn into office, his first action was to swear the six into office. However, the Judiciary’s independence is not as obvious as it ought to be since the President has mostly said he is unstoppable on hearing every ruling the Judiciary has made against the Executive, i.e., house levy, Haiti police deployment, Social Health Insurance Fund, among others.

It happens that nearly 90 of the promises in the Kenya Kwanza manifesto are not aligned with the Constitution. Their legality is thus open to challenge in the courts of law. And some of them have indeed been challenged, with the results not favouring the government. Realising this, the President moved around vilifying as corrupt the same Judiciary composed of the same judges that he had appointed, the same Judiciary whose budget he had increased after it had ruled in his favour when the IEBC was divided on whether he had really won the elections, with the majority of the Commissioners rejecting the results announced.

Realising that fighting the Judiciary would be counterproductive, he convened a meeting supposedly geared to having the three arms of government work together, suggesting some form of collaboration through the National Council of the Administration of Justice  under Chief Justice Martha Koome. With Opposition chief Raila Odinga who had opposed the President’s association with the Judiciary, now having to befriend the President for the prized AU Council top job, questions abound as to what is the Judiciary’s position in relation to the Executive and Legislature in a modern democracy under the prevailing circumstances of a weakened opposition?

Ecclesiastes 1.9 tells us: “there is nothing new under the sun; for what has been will be again, and what has been done will be done again.” Indeed, what Kenya is going through has happened before in the European Union. When I was a Governance student, it was noticeable that the relationship between the Executive and Legislature in Europe had transformed over the decades into inter-dependency. This was because the same political party, leading to decreasing the power of the Legislature to hold the Executive to account, mostly controlled the two organs. Unfortunately, it worked against the principle of separation of powers.

Luckily, the role of judiciary as the saviour evolved. The number of cases brought to the courts against some Executive orders as well as unconstitutional Acts of Parliament increased. As a result, the Judiciary increasingly had to examine and sometimes even restrain the actions of the other two powers. Consequently, today the court process provides a kind of alternative democratic arena where arguments between sections of the public and the powers of the state are exchanged and questions of general concern are debated. Kenya had made great strides in this aspect. However, it seems someone is trying very hard to undo the progress made so far.

Courts rule on issues of great economic and political importance. International institutions such as the Council of Europe, the European Court of Human Rights, the EuropeanUnion, and the Court of Justice of the European Union have all had a considerable influence in their member states, particularly by strengthening the independence of the judiciary and promoting the protection of human rights. Likewise, though the influence of the African Court of Justice and Human Rights is debatable, one of its core values is judicial independence and impartiality between all litigants, parties and stakeholders. In that regard, despite the seduction by President Ruto into close collaboration between the Judiciary and the other two arms of the government, Her Lady Justice Martha Koome needs to be aware that allowing the Kenyan Judiciary to descend from the pedestal to which it has been transformed so far may lead Kenyans to prefer regional and international supervisory courts over its own Judiciary. That will be a fall from grace to grass.

The trigger for the meeting in question was the allegations of corruption. However, there are many questions that remain unanswered about that meeting. First, do the three arms of the government need to meet to agree that corruption is an existential threat to Kenyan democracy? Of course, the objective was later modified to be “to improve service delivery”. However, such an objective doesn’t hold water since as long as the Executive delivers on its mandate, the other arms of the government will be less in the headlines. However, the Judiciary finds itself more in media headlines because the Executive has failed to deliver to Kenyans. And so, by the President successfully dragging the Judiciary into its mess, he has succeeded in subverting the will and Spirit of the Kenyans, which is enshrined in the Constitution.

Section 34 of the Judicial Service Act clearly states the mandate of the National Council of the Administration of Justice (NCAJ) is to ensure a coordinated, efficient, effective and consultative approach in the administration of justice and reform of the justice system. Ensuring service delivery of the other arms of government is not part of it. Now that the Chief Justice has been dragged and made to look like the head girl of the three arms, the President will easily use her as a scapegoat when he fails, by claiming either that she has failed the three arms, or that they have failed together. This will define the position of the judiciary in the new Democratic Kenya.

Strategy professor, economist and governance expert

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