President Uhuru Kenyatta on Monday opened the refurbished Kenya Meat Commission (KMC) factory in Athi River, Machakos County, despite a court judgment that found its transfer to the military illegal.
High Court judge Anthony Mrima in February found the transfer of KMC to the military illegal for lack of public participation, but gave the Ministry of Agriculture and the Attorney-General 90 days to regularise the move.
President Kenyatta, however, yesterday further cemented his plans of keeping KMC under the Kenya Defence Forces (KDF), while pursuing an appeal against the court decision.
The President, through an executive order, reassigned the ministerial roles of KMC from the Ministry of Agriculture and Livestock to the KDF, which falls under the Defence ministry, in a bid to give the cash-strapped, State-owned firm a lifeline.
“This court declares the said decision constitutionally infirm. The decision is hereby quashed,” ruled Justice Mrima.
The judge, however suspended the order for 90 days to allow the AG and the Agriculture ministry to regularise the situation given that the ministerial roles and budgets had already been transferred and effected.
The order on KMC’s transfer to the military is among several others that President Kenyatta has ignored, amplifying a public clash with the judiciary.
Among the other orders that the President has ignored is one directing him to appoint 40 judges who were recruited by the Judicial Service Commission.
In one of his last acts in office, retired Chief Justice David Maraga ordered the President to dissolve Parliament for failing to enact the one-third gender rule, but the government instead decided to appeal the directive.
A bench of the High Court also ruled that the appointment of Chief Administrative Secretaries (CASs) was illegal, but they continue discharging work.
Justice Mrima had also said Cabinet Secretaries who were appointed in the first term must be approved by the National Assembly to serve in the second term, a process that has not been undertaken yet they remain in office.
Further, Principal Secretaries who were also not shortlisted, interviewed and appointed in line with the law, were found to be holding positions contrary to the constitution.
The judge, however, suspended the decision, giving the government time to regularise the appointments.
Advocate Adrian Kamotho, who was among lawyers who tried pushing for the President to appoint the 40 judges, termed the disobedience of the orders as unfortunate.
“The President is the symbol of national unity. He should lead by example. Obeying a court order is the most critical thing to do because he enjoys the position by virtue of the law,” Mr Kamotho said. Mr Moses Kurgat concurred, saying the President is setting a bad example.
“What if tomorrow I decided not to obey a certain order because the President has done it before? By defying court orders, he is defying the people who elected him because the judiciary derives its authority from the people,” he said.
Disobeying court orders
The lawyer says that ignoring court orders could come back to haunt the President, with the passage of time. He said that, for citizens to obey the law, the President should abide by court decisions or appeal rulings since disobeying court orders could lead to anarchy.
Mr Omwanza Ombati also opined that the law might at one point catch up with the president.
“He should respect the law and the constitution which put him there. His office is a creature of the constitution, just like the Judiciary,” he said.
Mr Elias Mutuma, another lawyer, said the President took an oath of office and swore to defend and uphold the constitution. “He is bound by that oath,” he said, adding that the President cannot choose which court order to obey and which one to defy.
A bench of five judges has already found the President in contravention of Chapter Six of the constitution, and specifically Article 73(1)(a)(i), by initiating and promoting the Building Bridges Initiative (BBI) constitution amendment plan.
The judges said that, by taking the initiative to amend the law, other than through the prescribed means, the President had failed to respect, uphold and safeguard the constitution.
The judges added that, through the move, President Kenyatta fell short of the leadership and integrity threshold as set out in Article 73 of the constitution.