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Judiciary wields the only tools it has

The relationship between the Executive and the Judiciary is seen in some quarters to have soured starting September 2017 when the Supreme Court annulled the re-election of President Kenyatta.

That moment woke the current administration to the magnitude of the choices made in not only the leadership of the Judiciary, but the impact of years of reforms initially initiated by former Chief Justice Willy Mutunga.

The years following have featured “fights” between the two arms of Government. The Executive’s tools have been the National Assembly, through which the Judiciary’s budget has been reduced, resulting in complaints by former Chief Justice David Maraga. The Chief Justice also often felt slighted by the Executive, with his relationship with the President deteriorating to the point he complained that his calls would go unanswered and that his official vehicle had not been replaced or repaired.

The Judiciary has in turn wielded the tools at hand – the Constitution and the statutes as well as the State Law Office’s apparent weakness – to full effect. The latest blow came from the three judges who considered a petition by the Katiba Institute over the President’s powers in the appointment of judges. In ruling that the inaction of the President 14 days after nominee judges are submitted for his appointment renders him needless, the judges effectively paved the way for the Judiciary to have ultimate control of the appointment of judges.

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