Specifically, President Uhuru Kenyatta and his regime have relentlessly attacked or undermined the judiciary through derogatory public statements, targeted attacks against specific judges, smear campaigns on social media, unsuccessful prosecution, disobedience of court orders, cuts in budgets among others.
The latest was on 1st June 2021, during the Madaraka day celebrations, where Mr. Kenyatta stated inter alia; “from the nullification of the Presidential elections in 2017 to an attempt to stop the will of the people as expressed through the BBI bill, the Judiciary has indeed tested our constitutional limits.”
Two days later, the President picked 34 out of the 40 lists of judges (the initial list had 41 before one judge passed on) submitted by the Judicial Service Commission (JSC) for his appointment. These were sworn in the following day, during a public function that was hastily convened at State House, Nairobi. For no reasons or explanation went into the president’s omission and in any case, none is tenable considering the court orders of February 2020 which directed him to appoint judges in accordance with the recommendation of JSC in 2019.
We wish to remind Mr. Kenyatta that this behavior is utterly against the principles, values, and provisions sets by the constitution he solemnly swore to obey, preserve, protect and defend and do justice to all without fear, favour, or ill-will. Pursuant to Article 166(1) (b) of the Constitution, he shall appoint judges, in accordance with the recommendation of JSC. Thus, he has no mandate to choose which judges to pick or reject for his role is purely administrative as the Head of State.
Indeed, it is time that Mr. Kenyatta and the rest of the political class note that judicial independence is non-derogable and safeguarded in both the supreme law and other international frameworks. Thus the institution and its officers shall not be subject to the control or whims of any person or authority. The same class should recall that the authority they exercise is derived from the people and shall ONLY be exercised in accordance with the Constitution and to their benefit. Thus as provided for in Article 73(1) (b), it is a responsibility to serve the people, rather than the power to rule over them.
It is on this basis we associate with, and got enjoined in the Katiba Institute’s Petition No 206 of 2020 in which the KHRC remains the 2nd Interested Party. The case seeks among others, orders prohibiting the President, or his agents from appointing, gazetting, or swearing in a partial list of the 41 nominees and also an order prohibiting the Chief Justice and JSC or their agents from the judges appointed from the partial list of 41 judges. We are also seeking an order compelling the President to appoint all the 41 persons as recommended by JSC among others. We are deeply concerned that the initial list has suspiciously changed over time.
We shall therefore continue to judiciously and jealously defend the independence of the judiciary and other key organs of the State against the nefarious whims of the political elite. We shall also stand against any effort to turn Kenya into a political dictatorship, where respect for human rights and the rule of law doesn’t hold. Finally and pursuant to Article 3 of the Constitution, we call upon all Kenyans to meet their obligation to respect, uphold and defend the Constitution. May justice be our shield and defender.
Monday, June 7, 2021.