The judicial role of administering justice should operate independently without any coercion or manipulation in favour of the executive or any other government body. 

The entrenchment of the rule of law in Kenya will remain a challenge if the Executive continues to criticise judges publicly and defy court orders.

Political leaders, including the President, have on several occasions questioned decisions made by the courts, lowering public confidence in the judicial system by portraying the Judiciary as subservient to the Executive. 

This is despite the 2010 Constitution recalibrating the balance of power between the Executive, Judiciary, and Legislature. As a result, the Judiciary has become more confident and frequently scrutinizes the Executive’s exercise of power.

The jurisprudence developed by the Kenyan courts under the 2010 Constitution in the area of the exercise of Executive (presidential) powers is particularly important in the context of Africa, as a continent where imperial and authoritarian presidency is the norm. 

Legal commentators state that efforts by the Executive to undermine the Judiciary point to a regime that intends to concentrate decision-making power within itself. Part of the reason why the Judiciary is under pressure, they say, is because Parliament is not playing its constitutionally mandated role in checking the Executive’s power. 

The Constitution 

Before the adoption of the 2010 Constitution, the Executive magnified its power through control of the Judiciary. At the time, the president had unilateral power to appoint members of the Judicial Service Commission (JSC), which appointed, disciplined, and removed judicial officers from office. Given that the appointment of judges was a power ultimately vested in the president, the JSC acted as an extension of the Executive. Consequently, individuals or groups that openly opposed either the president or the ruling party were unlikely to receive any relief from the courts.

The 2010 Constitution completely overhauled the Judiciary. It created the Supreme Court, expanded and empowered the JSC, and established the judiciary fund. The courts were given powers to check the Executive’s dominance.

The most significant decision was in 2017, when the Supreme Court annulled the presidential election results after opposition leader Raila Odinga challenged Uhuru Kenyatta’s victory, arguing that the elections were rigged due to the Independent Electoral and Boundaries Commission’s (IEBC’s) connivance. 

The independence displayed by the Judiciary, especially after annulling the 2017 presidential election, made them a target for political pushback. For instance, former President Kenyatta refused to confirm the appointment of 41 judges proposed by the JSC in violation of the Constitution and the Judicial Service Act. Mr Kenyatta argued that he had the right and the duty to decide for himself whether the JSC nominations were appropriate after questions were raised about some of the candidates by the National Intelligence Service (NIS). In addition, the Jubilee government slashed the Judiciary budget, claiming that the reduction was necessary to offset costs entailed by the repeat presidential election in 2017 and to enhance free secondary education. 

The former President’s public rhetoric increasingly called into question the Judiciary’s legitimacy, with Mr Kenyatta accusing the courts of ignoring the people’s will and dismissing judges as unelected wakora (thugs).  

The recent attacks on the Judiciary by President William Ruto are no different from the previous regimes. The President is accusing some of the judges of being used by his administration’s detractors to frustrate his government policies, calling them corrupt cartels. 

“Ahmednasir SC, you warned me of sabotage by corrupt judicial officers. I told you there are many good officers in the judiciary and that we will root out the corrupt. We shall. Muite SC, the impunity of bribing judges so as not to derail, delay, or sabotage Kenya’s imminent transformation will never happen under my watch. Not a single cent will be used to bribe anybody. Mambo ya wafisadi wote ni yale nilisema (All corrupt people’s matters are as I said),” President Ruto wrote on X (Twitter). 

President Ruto has come under criticism from judges, lawyers, legal experts, and the opposition after saying that he won’t respect court orders that he perceives as an effort to undermine key policies of his administration. 

Chief Justice Martha Koome warned of a risk of anarchy if the Judiciary’s independence is not respected. “When state or public officers threaten to defy court orders, the rule of law is imperilled, setting the stage for anarchy to prevail in a nation,” she said. 

LSK president Eric Theuri said President Ruto, as “the foremost custodian of the rule of law, should refrain from undermining the judiciary and instead utilise legal avenues at his disposal to challenge decisions”. 

Opposition leader Raila Odinga accused the President of trying to hijack the Judiciary by intimidating judges and magistrates not to hear cases against his policies and either dismiss such cases or rule in his favour. 

Senior Counsel Okong’o Omogeni believes that President Ruto’s statement, in which he declared that he would disregard court orders, poses a threat to the country’s Constitution and the rule of law. “This impeaches the oath of office he took, which only gave him powers to govern in accordance with the powers bestowed on him by the Constitution. The courts must remain firm and borrow from examples from other jurisdictions,” the Nyamira Senator said. 

Implications

Critics view the comments by President Ruto as an assault on the very essence of Kenyan constitutional democracy. The remarks, they say, suggest a disregard for the right of individuals to approach the courts when aggrieved and the right to have disputes heard and determined.

The concern is that when high-ranking government officials like the President violate or ignore court orders, it erodes judicial authority, undermining the entire constitutional order.

Way forward 

The Kenyan section of the International Commission of Jurists (ICJ Kenya) asserts the importance of upholding judicial independence as a cornerstone of a democratic society. ICJ Kenya states that the rule of law dictates that a nation should be governed by its Constitution, laws, policies, and procedures rather than by decisions or whims of government officials. “All executive and parliamentary actions are subject to judicial oversight in a system of checks and balances, especially given our history of discriminatory, unconstitutional, or anti-people laws and policies.” 

However, ICJ Kenya expresses deep concern over allegations of corruption within the judiciary. Per the law, ICJ Kenya says, such allegations must be thoroughly investigated and substantiated through due process, ensuring the preservation of judicial impartiality. 

It adds that all actors must use the appropriate channels to ventilate issues. “Suppose any litigant, including the executive, is unsatisfied with the court’s decision. In that case, they can invoke the appeal process and seek a different outcome at the Appellate Court. Suppose the character of judges is called into question. In that case, a petition backed with evidence should be presented before the Judicial Service Commission, where all arms of government have representation.”

Why judicial independence is important to you

With an independent Judiciary, Kenyans are guaranteed that judges and magistrates are free to decide honestly and impartially, in accordance with the law and evidence, without concern or fear of interference, control, or improper influence from anyone. In essence, judicial independence serves as a cornerstone in protecting the rule of law and preserving the democratic values that underpin a just and equitable society for all.