THE JUDICIAL MISHAP- THE KENYAN DILEMMA.
Power games within governments are not a new thing all over the world. Common political games fall into three categories: Power Games, Ego Games, and Escape Games. Keep in mind that these popular pastimes are hardly limited to the workplace. We often play them with family and friends as well. Usually, power Game players are either trying to increase their leverage or flaunt the power they already have.
In Kenya, the three arms of government have often times engage in what can be termed as ‘a supremacy clash’ even though the constitution indicates that they are equal and inter-dependent on one another.
Immediately after Kenya had adopted the celebrated 2010 constitution, the supremacy battles once again came into play. The Supreme Court was headed by Dr. Willy Mutunga who was later accused of staging a judicial ‘activism’ under the Kibaki regime. However, Dr. Willy Mutunga’s judicial activism came under severe scrutiny after the disputed 2013 general elections which saw the Supreme Court dismiss CORDS electoral appeal on technicality grounds.
In 2017 came a landmark ruling that saw the nullification of the presidential elections by the Supreme Court under David Maraga’s regime. Since the nullification of the presidential elections the Supreme Court in Kenya has seen the supremacy battle between the judiciary and the executive escalate to an almost breaking point. This was after the executive had sworn to ‘revisit’ the judiciary for allegedly nullifying elections.
The relationship between the executive and the judiciary under the Jubilee government worsened to an extend that the president declined to gazette and appoint 41 high court judges that had been recommended by the Judicial Service Commission, (JSC). Justice David Maraga later retired and the JSC recommended Justice Martha Koome to take over. Two weeks after she had assumed office, President Uhuru Kenyatta gazetted the high court judges for appointment. However, out of the 41, he appointed and saw the swearing in of 34 judges rejecting 6 judges. This was yet another violation of the constitution by the executive as the President is only mandated to appoint judges that have been recommended by the JSC. Constitutionally, the President has no powers to choose which judges to appoint and which ones not to.
The executive saw almost all of its decisions under the Jubilee government termed ‘unconstitutional’ by the high court.
In yet another bombshell calling, David Maraga called on the President Uhuru Kenyatta to dissolve parliament, another arm of government for failure to adhere to the law.
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