Rulings expose love-h**e Executive, Judiciary affair

One year after President William Ruto was sworn in office the Judiciary has overturned some of his key decisions in the running of the nascent administration testing the relations between the executive and the courts.

Under Ruto’s administration, a dalliance between the Judiciary and the executive had started blooming immediately after the ruling Kenya Kwanza coalition ascended into power.

Since being sworn in after winning the presidential petition at Supreme Court that had been lodged by his archrival Azimio la Umoja leader Raila Odinga, Ruto was keen to make amends with the judiciary that was dealt a blow due to a strained relationship with his predecessor Uhuru Kenyatta’s regime. During his swearing-in ceremony in September last year, judicial matters were among the issues that dominated the talks in Ruto’s speech.

On top of giving a lifeline to the judges who had been rejected by his predecessor by appointing them, Ruto pledged to increase budgetary allocations to the judiciary which he honoured in his inaugural budget last month.

“To consolidate the place of the judiciary in our constitutional and democratic dispensation, my administration will respect judicial decisions while we cement the place of Kenya as a country anchored on democracy and the rule of law. My administration will scale up the budgetary allocation to the judiciary by an additional Sh3 billion annually for the next five years,” President Ruto stated during his inaugural speech.

But just when Ruto is settling to march forward with his administration, he encountered missteps after the judiciary repealed key decisions which are critical in his governance.
Ruto first run into loggerheads with the judiciary in May after he appointed a Judicial Commission of Inquiry to investigate the Shakahola deaths and religious organisations in the country a move that was challenged by Azimio in the court.

While determining the case, High Court said that it would not be prudent to let the commission commence its sittings when there are legal contentions indicating it will hijack other constitutional institutions’ (Parliament and Police) mandate to investigate the matter. In quick succession came the High Court’s declaration of 50 Chief Administration Secretaries (CAS) as unconstitutional after the Law Society of Kenya (LSK) and Katiba Institute filed a petition to challenge the appointment process.

In a three-judge ruling, the court said public participation in the creation of the CAS post was only conducted for 23 occupants and that the creation of the additional 27 occupants did not adhere to the constitutional requirement of public participation. Parliament declined to vet them saying it had no constitutional mandate to do so but they were sworn in at a function in Statehouse presided by President Ruto in March.

The court also barred the appointees, the majority of whom were political loyalists of Ruto but had been trounced at the ballot during the August General Elections, from earning a salary, remuneration and any benefit pending the conclusion of the case.
Ruto’s administration

A petition filed to block the government from implementing the controversial Finance law that Ruto assented to towards the end of last month is the latest tussle, and the biggest blow to Ruto’s administration, pitying the executive and the judiciary.

The High Court last week extended orders barring the National Treasury from implementing the controversial Finance Act, 2023 after dismissing an application by the government to lift the freeze.

In her ruling, Justice Mugure Thande said on Monday that the Treasury Cabinet Secretary Njuguna Ndung’u did not convince the court why the earlier order should be suspended adding that from the submissions of all parties that argued before her, the balance tilted in favour of the petitioners.

“Upon evaluation of the submissions, I have no difficulty finding that the petitioners have established a case with a probability of success,” Justice Thande said amid claims by Attorney General Justin Muturi that operations of the government risk breaking to a halt since the order had suspended many budgetary approaches.

Lawyers Otiende Amollo and Daniel Maanzo representing Busia Senator Okiya Omtatah who is among the petitioners in the Finance Act case urged the court to suspend its implementation until the case is determined arguing that it will subject Kenyans to slavery and servitude.

According to Omtatah the Act is unconstitutional as it does not spell out how revenue will be raised to fund the proposed expenditure adding that it was illegal for the Members of Parliament to pass the Bill without the concurrence of Senators.

“You cannot tax Kenyans without telling them how much money you intend to raise. Similarly, the power to tax people is anchored on the law which requires the full participation of the two Houses (National Assembly and Senate),” Omtatah said.

In his submission, lawyer Amollo termed the entire Finance Act as procedurally unconstitutional faulting

Speakers Amason Kingi (Senate) and Moses Wetangula (National Assembly) for permitting the introduction of new clauses on the floor of the House without public participation.

Though the President has not come out openly to castigate the judiciary for reversing those decisions, highly placed Ruto’s allies who occupy the inner circle of the Kenya Kwanza alliance are giving the courts a serious look.

Early this month Prime Cabinet Secretary Musalia Mudavadi accused the Chief Justice Martha Koome-led arm of the government of disregarding the principle of public interest faulting the judiciary for suspending the whole Finance law yet the bone of contention was just a ‘procedural issue’ which could have been resolved through an alternative litigation mechanism