Chief Justice Martha Koome finds herself in a straight-jacket spot following President Uhuru Kenyatta’s salvo against the Judiciary’s affinity to test the Republic’s constitutional limits during the 58th Madaraka Day Celebrations and address to the Nation.
CJ’s first declaration words when she was unveiled to the Judiciary on May 24th 2021 were and quote,
“The independence of the Judiciary in decision making is protected and ring fenced in the Constitution: such that any party or authority attempting to direct how the Judiciary should decide a matter would be in violation of the Constitution,”
The CJ, who was sworn in just over 10 days ago, is already walking a road riddled with dynamite as threats against the Judiciary come at a time she had struck a conciliatory and friendly tone with the Executive.
The President accused judges of constitutional rigidity that was hurting the country economically as well as its efforts at forging peace. He cited what he said was a Sh1billion loss for every hour of the 123-day 2017 election period – owing to the repeat election ordered by the Supreme Court – arguing that the Judiciary had made the same mistake when a Five-Judge Bench of the High Court stopped BBI on its tracks last month.
“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?” posed the President in Kisumu.
This week, Law Society of Kenya (LSK) President Nelson Havi said the CJ should have reacted to the comments by the Head of State and defended the independence of the Judiciary.
In Kisumu on Wednesday, when she presided over a function at the Kisumu Children’s Remand, the CJ did not respond to the President’s comments.
Makueni senator Mutula Kilonzo Jr, had this to say when reached for comment and quote,
“The President should exercise restraint as much as he can, as head of the Executive. His comments can easily be construed to mean that the Executive should not lose a matter in court. If the appeal is determined in his favour, would it mean that the Judiciary is pandering to the whims of the Executive? Or is the President saying he can proceed irrespective of the rulings of the court?”
At the case management conference of the BBI appeal at the Court of Appeal yesterday, lawyer Dudley Ochiel said the President’s comments amounted to contempt of court.
“I seek directions on remarks made by a party to these proceedings using the high office of a state officer and in a manner that will throw whatever we have brought to you into disrepute and will undermine the public confidence in this court to deal fairly in the matters before it. Speaking in a national event, the Madaraka Day, the President made remarks which will be concerning to all of the litigants before this court. We seek to formally bring those remarks to your court, because they amount to contempt of court,” Mr Ochiel, appearing for Dr. Jack Busalile Mwimali, an amicus curiae (friend of the court) in the case, told the court.
In his directions, newly elected Court of Appeal President Justice Daniel Musinga warned parties against prosecuting the matter out of the court, but did not give directions on the contempt finding.
“Let us be civil. Let us respect one another. Let us be balanced in our comments. We have an important judicial process that must be handled in a sober manner. Let us not begin to prosecute or defend our respective positions outside there in the media. Please allow the court to make a fair, totally informed decision without unnecessary attacks and comments by all concerned,” Justice Musinga told the parties.
For a Chief Justice that had staked her performance on protecting the independence of the Judiciary, the comments by the Head of State put her in a difficult position. And even after the Head of State appointed new judges after a lengthy standoff, the fact that he dropped seven judges, including two who gave the damning BBI verdict, despite a recommendation by the Judicial Service Commission for their promotion, opens a new battle front. This is yet another headache for the new CJ.
The President’s rant against the Judiciary adds to her woes, less than a month after she took the oath of office.