Is the president settling a personal score against some judges? This the question in many a Kenyan’s mind.
Kenyan President, Mr. Uhuru Kenyatta has opened yet another warfront with the Judiciary, after he rejected six out of the 41 judges whose names the JSC had forwarded to him for appointment to the CoA about two years back.
For starters, the president doesn’t possess not even an iota of power to reject any judge whose name has been forwarded to him by the JSC. His work is just to sign and confirm the appointment of the judges.
Vetting judges isn’t a prerogative of the executive since this is expected to have been thoroughly done by the JSC, which is mandated to do so.
Hence, what the president is doing completely goes against the doctrine of separation of powers in a functional democracy.
The 18th century French social and political philosopher Charles-Louis de Secondat, baron de La Brède et de Montesquieu coined the term “trias politica,” which means “Separation of powers”.
The principle of separation of powers has over time grown into a stroke of political genius, which is considered to be the backbone of any strong and thriving democracy.
The main logic behind “separation of powers” is that political authority of the state needs to be divided into three equal powers: the legislature, executive and the judiciary.
To effectively promote liberty, the three arms of government should not only be separate and independent, but should also be able to put checks and balances on each other’s excesses, as stipulated by the supreme law of the land.
That George Odunga and Prof Joel Ngugi are among the 6 judges whose appointments Uhuru purportedly rejected, only makes the confrontation between the Kenyan judiciary and the executive even uglier and absolutely childish..
The president can only come out of this ignominious standoff with a bloody nose and more egg on his face, since he is openly pretending to exercise imaginary powers that the Kenyan constitution doesn’t bestow on him.
It is also not lost on most Kenyans that the two judges (Odunga and Ngugi) sat on the high court bench that recently rejected the BBI process. The groundbreaking ruling was seen by many as a slap on the the face of the president, who is a principal proponent of the BBI project.
The latest development can only, therefore, be seen as an act of a president who is desperately trying to hit back at an independent judiciary, after the unfavorable ruling against the BBI. The ruling came in the wake of many other previous court rulings, which declared his actions as unconstitutional.
What kind of legal advice is AG Kihara giving the president, if any? Kenya is a constitutional democracy, where the sovereign power of the people is clearly donated to leaders by the constitution, which remains supreme.
President Uhuru’s penchant to defile the constitution by ignoring and defying court orders is an act of pure impunity, which should worry all right-thinking citizens, regardless of their political leanings.
Those supporting Uhuru’s public rape of the constitution, merely because of their political leanings that support the status quo, should think twice. They should imagine of an emasculated and weak judiciary when their worst enemy is in power. Is that something they would wish for our country?
Kenyans have actually lost count of the number of court orders that Uhuru has defied during his tenure. This sets a very dangerous precedent which can easily become the norm for future presidents, if it isn’t stopped now.
The separation of powers between the executive, judiciary, and legislature should be allowed to offer the ideal checks and balances, within the top arms of government that control the political authority of the state.
Therefore, to most effectively promote democracy in any country, these three powers mus act as independently as possible, at all times and at all costs. None of the three should meddle in the affairs of the other, so long they all act within the confines of the law.
Since the legislature in Kenya is made up of greedy politicians; it is no wonder that both houses of parliament have easily become mere rubber stamps of the executive, usually, in exchange for government largesse.
Given that the Kenyan legislature is fully controlled by the executive, a brave judiciary happens to be the last line of defense for the common folks.
The judiciary remains to be the only institution that Kenyans can look up to stop any defilement and mutilation of their hard earned constitution by the executive.
It is for this very reason that any attack on the Kenyan judiciary is a direct attack on the people of Kenya. All Kenyans of goodwill must rise up and defend the judiciary against unwarranted attacks from an overbearing executive.
The president is openly on the wrong side of the law and he is gradually sliding the country into a dictatorship, as we cheer him on. Our judiciary must stand firm and defend its independence, to the bitter end.