Uhuru Kenyatta’s love-hate relationship with the Judiciary intensifies

The love-hate relationship between President Uhuru Kenyatta and the Judiciary continued with the High Court arguably going on with the “judicial impeachment” of the Head of State, with the judges reaffirming that Mr Kenyatta could indeed be sued for overstepping presidential authority.

In the judgment, like several others done before, the judges took a jibe at Mr Kenyatta and his Jubilee government, holding that the President or any other person holding that office is only protected from such actions (being sued) “in respect of anything done or not done in the exercise of their powers under this Constitution”.

Following the ruling, lawyer Paul Mwangi, who represented some of the respondents in the case stated, “...The BBI judgment was not about protecting a Constitution. It was about destroying a country.”

“Even the petitioners are shocked. The judges hijacked their case and used it to wage war on the President instead of dealing with the issues the petitioners raised,” lawyer Mwangi tweeted.

The BBI ruling rekindles other past rulings and judgments which have brought friction between the two arms of government.

Early this month, the High Court overturned the nomination and appointment of lawyer Dorothy Jemator to the selection panel that is recruiting four commissioners of the Independent Electoral and Boundaries Commission.

Last month, the High Court declared the position of Chief Administrative Secretary (CAS) illegal, with Judge Anthony Mrima further ruling that Cabinet Secretaries who were retained in 2017 from President Kenyatta’s first term ought to have been vetted afresh or competitively recruited by the Public Service Commission (PSC).

The Head of State announced the creation of the CAS position in every ministry on January 26, 2018, a position through which several of his political associates were awarded jobs in government.

In February, the High Court reversed Mr Kenyatta's decision to transfer the Kenya Meat Commission (KMC) from the Ministry of Livestock to Defence, stating that the move violated Article 10 of the Constitution, due to lack of public participation.

Justice Anthony Mrima said the move violated Article 10 of the Constitution, but noted that the error can be rectified.

In December last year, the High Court ruled that the government should refund thousands of people forced into mandatory coronavirus quarantine centres because the move was illegal.

The mandatory quarantine centres were part of measures instituted by the Kenyatta administration to arrest the spread of the virus.

Since September 2020, President Kenyatta has failed to act on a 10-page letter sent to him by former Chief Justice David Maraga advising him to dissolve Parliament for neglecting to pass laws on gender parity.

In June 2020, the High Court declared the Deed of Transfer of Functions executed between the National Government and Nairobi City County Government as vague and irregular. The judge later on reversed her orders on the creation of the Nairobi Metropolitan Services.

In January 2020, the Employment Court quashed the appointment of former Othaya MP Mary Wambui as the chairperson of the National Employment Authority, arguing that her appointment was irregular as she did not meet the qualifications of the office.

In February last year, the courts ordered the President to appoint 41 judges nominated to take up various positions in the Judiciary.

A bench of three High Court judges found that President Kenyatta’s decision to stall the appointments was unconstitutional, and that he does not have the power to reject or review a list of nominees presented to him by the Judicial Service Commission (JSC) —the judges’ and magistrates’ employer.

In November 2019, the courts quashed the nomination of former Nyeri Town MP Esther Murugi and former Isiolo Woman Representative Tiyah Galgalo to the National Land Commission (NLC) holding that the selection panel for the nominees was improperly constituted.

In February 2018, the High Court declared Miguna Miguna's deportation order illegal and ordered the government to surrender his Kenyan passport.

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