Five moments the Judiciary stood up to President Kenyatta

The 'revisit' has been unsuccessful, so far.

In his second term, President Uhuru Kenyatta and the Judiciary have had a toxic and torrid love affair.

Since 2017, President Uhuru Kenyatta and the Judiciary have had a toxic and torrid love affair. The wrangles between the Judiciary and the Executive can inspire film directors to script several episodes of this political drama.

2017 General Election

The feud between the two parties started in 2017 when the Supreme Court annulled the result of the presidential election, citing irregularities, and ordered a new one within 60 days.

The Independent Electoral and Boundaries Commission (IEBC) had declared incumbent Uhuru Kenyatta the winner by a margin of 1.4 million votes.

Raila Odinga, Mr Kenyatta's opponent, said the commission was "rotten" and demanded resignations and prosecutions.

President Kenyatta said he would respect the court's decision but also branded the judges "crooks".

Other elections in Africa have been annulled or cancelled but this appeared to be the first time on the continent that an opposition court challenge against a presidential poll result was successful.

Restructure order

The High Court in June 9, declared President Uhuru Kenyatta's Executive order that sought to restructure the Judiciary and tribunals into state departments unconstitutional.

In a judgement delivered by Justice James Makau found that the Law Society of Kenya (LSK) had demonstrated that the intended restructures of the Judiciary are a threat to the financial independence of the Judiciary.

The court also found that it is unconstitutional for President Uhuru Kenyatta to purport to organize government and set out Judiciary commissions and independent offices.

Last year, then Chief Justice David Maraga publicly criticised the president after the release of Executive Order No 1 of 2020, claiming that the Head of State had illegally altered the Judiciary’s organisational structure.

Following the CJ’s outcry, LSK moved to court seeking to quash Uhuru’s directive on the basis that it was done without consultation.

According to the LSK, tribunals that ought to be under the Judiciary have been assigned to various government departments and ministries.

Kenya Meat Commission (KMC)

In a High Court judgement of February 2021, the court ruled the transfer of KMC to the Defence Ministry was in violation of Article 10 of the Constitution on public participation.

The court declared there was no public participation in the transfer decision and as such, the High Court declared the move unconstitutional consequently quashing the president’s Executive Order to transfer KMC from the Agriculture Ministry.

With the president’s decision already effected and budgets allocated from the Agriculture Ministry to the Defence Ministry — the government was given 90 days upon which to reverse the process and have KMC domiciled in the Agriculture Ministry.

Chief Administrative Secretary (CAS)

In April 20, High Court Judge Antony Mrima ruled that the creation of the office of Chief Administrative Secretary (CAS) was unconstitutional.

Justice Mrima also ruled that cabinet secretaries who continued to serve without being vetted in 2017 were in office illegally.

He added that any permanent secretary not competitively recruited by the Public Service Commission (PSC) was in office illegally.

The ruling comes after activist Okiya Omtata moved to court challenging the appointment of the officers and creation of the office of the CAS.

He argued that there was no public participation in the decision to introduce CASs as assistants to cabinet secretaries.

Building Bridges Initiative (BBI)

In June 21, the Court of Appeal upheld a decision to stop President Kenyatta from making broad constitutional changes.

The proposed amendments, popularly known as the Building Bridges Initiative (BBI), would have been the biggest change to governance since a new constitution in 2010.

The court upheld a High Court decision in May that declared the proposed reforms illegal on the basis that Kenyatta acted unconstitutionally.

"The days of (an) unaccountable presidency are long gone," said Patrick Kiage, one of the appellate judges, rejecting the government's appeal.

The proposed amendments would have created 70 new constituencies and establish several powerful new posts: a prime minister, two deputies and an official leader of the parliamentary opposition.

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