No sooner had the dust of 2023 settled than the leader of the executive arm of Kenya’s government launched missiles of subliminal jibes aimed at what he termed “a tyrannical and corrupt judiciary.” President William Ruto—a product of the Kenyan Supreme Court’s ruling on the 2022 Presidential Petition—averred that some judges were bent on sabotaging and subverting the government’s agenda by ruling against key policies and bills. The president promised to “deal” with “corrupt judicial officials … who want to perpetuate judicial tyranny and judicial impunity.” Before the President’s Kenya Kwanza brigade was the stalemate of the Affordable Housing Bill, 2023. A three-judge bench sitting in Kisumu found the bill unconstitutional in November for lacking a legal framework and also disagreed with the manner in which the public participation exercise regarding the bill was to be conducted. In addition, deducting funds from employed Kenyans only was termed “discriminatory,” and for these reasons, the bill was granted a stay order until a further date to be determined by the court.

Speaking on the second day of the first month of the new year, the President sent chills down the spines of the chief justice, the judiciary, crusaders of judicial independence, the law society of Kenya, the opposition and Kenyans at large through his remarks. He essentially forced the chief justice, Lady Justice Martha Koome, into a truce. She extended an olive branch for dialogue between the two arms of government—a matter Opposition leader Raila Odinga hotly contested. The president’s sentiments were reminiscent of the dark days of the Moi regime when the president essentially pulled the strings in court rulings. He sent the chief justice on a wild goose chase, blowing hot air. This essentially begs the question, is judicial independence a matter subject to the direction and control of executive whims or is it a matter of legal right provided for in Kenya’s 2010 Constitution?

Chief among the hurdles that bedevil the implementation of the celebrated 2010 Constitution of Kenya—hailed as a beacon of hope—are the eternal power wrangles between the three arms of government. The judiciary has often fallen victim to the other two arms of government, owing to its singular most essential role of interpreting statutes born from the union of the executive and the legislature. Whereas the legislature boasts the ability to blackmail the executive and the judiciary using its oversight role, the executive has its hands in the national purse, as well as state security machinery, and hence can pull strings to have policymakers and legislators dance to its tune. This inadvertently renders the judiciary a toothless German Shepherd—subservient to both the executive and the legislature as a matter of need and not want. The president’s remarks these last few days, supported by a few naïve legislators who chose to hop on the bandwagon and do his bidding, paint a rather bleak picture. The chief justice’s bemusing refutation—almost one week later and seemingly coerced—fares somewhat dismally in the court of public opinion. Is the Kenyan judiciary essentially operating under a proverbial state capture?

That the president acknowledges judicial tyranny and impunity are major impediments to the realization of justice and the rule of law is sufficient. It is an open secret in the public domain. Granted, the president is an equal shareholder of the state. He reserves the right to his own opinion as well as “a fair hearing.” However, publicly chastising judges and threatening them with quasi-judicial actions in response to their decisions in the absence of solid evidence is totally reckless. It altogether nullifies the president’s claim that he recognizes the independence of the judiciary and the significance of the rule of law. It elevates him into a law unto himself and betrays his solemn promise to uphold the spirit and the letter of the 2010 Constitution.

The Presidency is the highest office in the land, mandated with performing the functions of Commander in Chief of the Defence forces as well as leading the executive. Even though the office lends immunity against civil and criminal suits to the holder, the president remains a state officer and is confined to act in accordance with the provisions of article 73(a)(ii). In promising to “deal” with judicial tyrants, the president disrespects the place of judges in Kenya and demeans the position of the judiciary as a “co-equal” arm of the government. It is not clear how the executive arm of the government plans to “deal” with rogue elements within the judicial arm of government as this is not envisioned in the 2010 Constitution. The Constitution does not provide leeway for the executive arm of government to “deal” with the judicial arm of the government or elements therein. Instead, by creating the Judicial Service Commission as an independent and autonomous body corporate, the framers of the Constitution aimed to create a legal path via which disciplinary measures could be taken and issues resolved.

Under 131(1)(e), the president is expected to ensure the protection of human rights, fundamental freedoms and the rule of law. Among the fundamental tenets of the rule of law are the principle of separation of powers and judicial independence and autonomy. The Constitution does not give the president the power to “deal” with rogue judicial officers who rule against government projects and policy issues. Article 159(2)(a) affirms the words of the national anthem that “justice should be done to all irrespective of status.” The government stands in court as a citizen equal to all other citizens of Kenya—a body corporate. Due process must therefore be followed to the letter irrespective of the matter at hand. Thus, the idea of instituting special courts to deal with cases that touch on government policy issues—as was the supposition by the president’s point-men—is inexcusable. Moreover, it is an act of injustice in the sense that it negates the need to solve the perennial problem of burgeoning court cases and affords the judiciary an opportunity to get away with delayed justice, which goes against article 159(2)(b) of the Constitution.

As a citizen, the president has the power to gather evidence and level a suit against any corrupt judge, and such a judge can be removed from office through articles 75(2)(a) and 75(2)(b). The president can petition the Judicial Service Commission—through the attorney general who sits in both cabinet and the JSC—and bring charges against rogue judges that are bent towards impunity and corruption. None of these procedures involves publicly declaring war on a co-equal arm of government. Furthermore, the president can rest easy because article 75(3) bars any state officer found to have acted in contravention of the Constitution from holding any other state office.

Suffice to say, a sitting president cannot purport to head the executive and “deal” with rogue officers in the Judiciary in the same breath unless such a president is leaning towards draconian and dictatorial tendencies. Borrowing a leaf from the harrowing tyrannical and repressive experience with the independence constitution, the framers of the 2010 Constitution succinctly outlined tenets to ensure strict independence and autonomy of the judiciary. The Independence Constitution relegated the judiciary to a mere department of the executive and had judges making rulings at the behest of the presidency. Although the three arms remain interdependent in the performance of their duties, their roles are clearly spelled out and defined from each other. The principle of equity that the 2010 Constitution lends to the three arms of government forced the executive to submit to the Supreme Court’s nullification of the 2017 Presidential election—a matter that was previously impossible to envisage in the Kenyatta and Moi era. Article 160(1) ensures the judiciary is under the control of no person or authority. Therefore, not even the president can purport to influence outcomes in court cases.

Article 168(1)(e) of the 2010 Constitution provides for the removal of a judge from office on the grounds of gross misconduct. Furthermore, the Constitution ensures judicial autonomy by instituting article 168(2), which expressly provides that the removal of a judge from office may only be initiated by the Judicial Service Commission acting on its own motion or on petition by any person—including the President of the Republic of Kenya. Therefore, the avenue of instilling discipline among judges is rather succinct and makes no room for quasi-judicial action by any other arm, as these would be deemed to be in violation of the judge’s rights. Such a removal requires that the petitioner set out the grounds for removal of the said judge. A tribunal is formed to look into the matter, and the judge is either removed or reinstated, depending on the recommendation of the tribunal. In the spirit of the separation of powers, the Constitution under article 168(9) binds the president to act in accordance with the recommendations of the tribunal and not otherwise.

Perhaps a matter of interest in the president’s speech is how the judiciary comes into existence altogether. Kenya is a creation of the Constitution. Judicial officers in Kenya are appointed, not elected based on popular vote. Some of the parameters used in their appointments include their academic qualifications, judicial experience and their personal conduct in how they carry out their duties. On the contrary, both the executive and the legislature in Kenya contain elements of people elected based on popular vote. This is to say, the judiciary is the last port of call in this country, required to restore order and sanity and balance the other two arms of government whenever they go berserk in performing their functions. The Supreme Court, for instance, is given the power to be the last court of appeal, understanding full well that appeal processes can carry on indefinitely. This court is given the power to grind such indefinite processes to a halt and in doing so, restore order and sanity in society. Different from this, the executive arm does not enjoy such infinite power when it comes to the function of ratifying bills into laws. Failure to sign a bill into law, the bill automatically becomes law after 14 days of waiting, even without the seal of the head of state.

The judiciary as a standalone arm of government has no teeth to bite. It relies on the executive arm that houses the state security machinery and the military to enforce its orders and directives. The judiciary in Kenya has saliently remained the foster child relying on the gracious kindness of the legislature to allocate barely sufficient funds and the goodwill of the executive to implement its directives. Suffice to say, one would like to think that the judiciary is a co-equal in the politics of arms of government but with barely any power to sustain its existence, judicial independence remains mere pomp and no colour in the all-too-ambitious Constitution of Kenya, 2010. This is similar to the statutory “two thirds gender rule” whose implementation remains a mystery. The two thirds gender rule was a matter of contention that led the former Chief Justice David Maraga to issue an advisory to then-President Uhuru Kenyatta to dissolve parliament; a matter that went ignored by the executive.

In the matters of legal interpretation, determination of fact and the administration of justice, the judiciary stands supreme above all three arms of government in Kenya to ensure accurate and precise interpretation of the law. It is highly undesirable that the maker of a law be the interpreter and executor of the same law. Human nature will always incline any such individual to operate outside the confines of such law, if unfavourable. In view of this, the framers of the 2010 Constitution put such obvious safeguards as article 116(3) that defers the effect of legislations that confer a direct pecuniary interest on members of Parliament until the next general election. A departure from judicial independence means inviting chaos. Like the Bill of Rights, judicial independence must exist unconditionally. In agreement with Professor Makau Mutua of the Buffalo School of Law, “The Constitution is not merely hortatory but a living document guiding, defining and permitting all actions of the state.” It is the eternal duty of every arm of government to breathe life into the Constitution.

Meldrick Sakani is a first-year student in the law program at the University of Nairobi. He is enthusiastic about legislative drafting and constitutional law.