More thorns than roses in Ruto ties with Judiciary

Immediately after he took over power as Kenya’s fifth president in September 2022, William Ruto swore in six judges who had been rejected by his predecessor, Uhuru Kenyatta.

This was in fulfilment of the pledge he made during his swearing-in ceremony.

“To further demonstrate my commitment to the independence of the Judiciary, this afternoon, I will appoint the six judges already nominated for appointment to the Court of Appeal three years ago by the Judicial Service Commission. I shall preside over their swearing-in ceremony so that they can get on with the business of serving the people,” Ruto said after his inauguration as president.

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His critics argue that Ruto started at a high point by swearing in judges whom his predecessor, Uhuru Kenyatta, had declined to.

Broken promises

Nevertheless, they claim Ruto turned a sinner, just like his former boss as others say that he went against his election promises to Kenyans.

“You have to start with his manifesto and say he has done everything to even negate his manifesto promise. On the part of fundamental rights and administrative justice, he promised that he would ensure that the government would abide by all judgments and rulings and implement them within 60 days,” said lawyer Waikwa Wanyoike.

Ruto, he observed, promised to end police abuse by enhancing police oversight through Independent Policing Oversight Authority (IPOA) and National Police Service Commission (NPSC).

However, police abductions, enforced disappearances, killing and maiming of unarmed protestors, and police abuse of power have been among the many reasons the President and his team have been dragged to court.

But others say this did not come as a surprise. His predecessor, Uhuru, openly expressed defiance against court orders.

Ruto too, joined the symphony by stating that he would ignore orders not pleasing to his ears.

When Ruto assumed office, the first shocker was to have his list of Cabinet Administrative Secretaries (CAS) rejected by the courts. This was the first biggest loss for President Ruto at the hands of the Judiciary.

Main antagonists

Seen as a move to reward his political loyalists who stood with him during the 2022 campaigns, the president exceeded the 23 advertised positions for CAS but High Court Judges Hedwig Ong’udi, Kanyi Kimondo and Aleem Visram could not allow the illegality to take root.

The judges ruled that the appointments were unconstitutional and quashed the president’s decision in a move that sent him back to the drawing board on how to reward his loyalists.

The elephant in the room for both presidents is the failure to follow the law, especially public participation. From the periphery, it appears that the two had the same script, the same tactic but too predictable to be stopped on the tracks.

The people and organizations behind their woes in the Judiciary include Busia Senator Okiya Omtatah, the Law Society of Kenya, the Kenya Human Rights Commission and the Katiba Institute.

Between 2012 and 2018, Okiya is estimated to have filed at least 130 cases against the then government. Out of this, at least 95 per cent violated the Constitution.

In Ruto’s term, he alongside LSK, KHRC and Katiba Institute has been part of and has been in almost all major battles against the government in court. The latest is the decision to lease Jomo Kenyatta International Airport (JKIA) to an Indian firm, Adani Group for 30 years.

Just like Uhuru, Ruto became increasingly angry with judges after his controversial tax policies and appointments were halted.

Finance laws

In an outburst before a church in Soy, Uasin Gishu County, Ruto alleged that there were people who were bribing courts to have their way against his administration.

“How do you expect me to be quiet when a few people are rushing to the courts to stop plans to create job opportunities for Kenyans… Those who don’t have jobs do not have money to hire lawyers or bribes to courts. I will stand with them. I am going to be their advocate until they get jobs,” Ruto claimed in response to the Housing Levy being challenged in court.

Courts have been the dancing ground for almost all major decisions that Kenya Kwanza has made. It has, however, been baptism by fire as losses incurred before the court have been bruising and fast coming.

At the top of the wars is the enactment of Finance Acts. Just like Uhuru, Ruto seems to be walking on eggshells with his tax policies.

Currently, the Finance Act 2023 case is before the Supreme Court, after Ruto partially lost it before the High Court and fully lost before the Court of Appeal.

The 2024 one was equally before the court but was withdrawn after countrywide protests.

“We will protect the independence of the Judiciary. What we will not allow is judicial tyranny and judicial impunity,” Ruto said while accusing some judges of corruption and working in cahoots with litigants in cases challenging the government’s economic plans.

Lawyer Duncan Okatch says the President is now playing the same card of circumventing and ignoring court orders.

He is of the view that the administration’s behaviour is a stark reminder of the Jubilee administration when then President Uhuru would demonize Judges and his lieutenants would blatantly ignore court orders.

He states that for example, the Inspector General of Police Gilbert Masengeli’s defiance of court orders is a reminder of former Cabinet Secretary Fred Matiang’i, then IG Joseph Boinett and former Director of Criminal Investigations George Kinoti's contempt of court cases.

“He started well by swearing in judges who his predecessor had declined and activating the Judiciary Fund. But no sooner had he started than he embarked on the same road his predecessor was on.”

“Once the court issued several orders that he believed were just unfavourable to his administration, he embarked on ignoring them and circumventing the same. This is what has bolstered the likes of the acting IG and takes us back to when Matiang’i and former Interior PS Karanja Kibicho were found in contempt, but it meant nothing,” says Okatch.

However, the lawyer argues that Ruto is better than Uhuru with the Judiciary.

Lawyer Willis Otieno thinks otherwise. “The president is terrible. He has failed in all sectors,” says Otieno.

 Nevertheless, lawyer Adrian Kamotho has a different perspective on the issue. He states that Ruto kicked off on a sound footing by swearing in judges that Uhuru had unlawfully declined to appoint.

“He has relentlessly led by example in buttressing the rule of law by uncompromisingly obeying court decisions even when they relate to passionate state agenda. He has nurtured a progressive dispute resolution atmosphere, which has enabled citizens to subject government programmes to rigorous legal scrutiny,” he says.

According to him, all Kenya Kwanza flagship projects have weathered tenacious litigation and so far, he says, the President has gladly welcomed the outcomes.

“The President has taken all court outcomes in stride. Unlike past regimes that flagrantly defied court orders, the current norm is to appeal against decisions where solid grounds for alternative legal findings are discernible,” Kamotho said.

Successive cases

During his swearing-in at the Kasarani Stadium, the President publicly declared that his Kenya Kwanza government would honour court decisions.

“My administration will respect judicial decisions while we cement Kenya as a country anchored on democracy and the rule of law. I want to assure you that my administration will respect the independence of the Judiciary,” said Ruto.

In what would have been said as a honeymoon between the Executive and the Judiciary, Ruto immediately swung into action by allowing the implementation of the Judiciary Fund and increasing the budgetary allocation by Sh3 billion.

But it was up to that point when love seemed to simmer between the two arms of government.

The inevitable happened; successive cases challenging Kenya Kwanza’s decisions started pricking Ruto’s love against judges.

Despite early signs that the Judiciary and the Executive could be in a good working relationship, it has not been easy for President Ruto’s administration to get away with some decisions that have ended up being stopped by the courts.

Two years after coming into office, the president has suffered more defeats than victories at the hands of judges who have thwarted any Executive’s attempts to violate the Constitution.

The litmus test of whether the Kenya Kwanza was ready to submit to the court's authority was, however, the Finance Act, 2023.
Immediately Justice Mugure Thande froze Ruto’s government's maiden taxation law, and the Energy and Petroleum Regulatory Authority (EPRA) hiked oil products cost, factoring 16 per cent increase. EPRA boss has since been ordered to appear before the court to respond to a contempt application filed by Senator Omtatah.

When the High Court declined to lift the orders, the President took his grievance against the Judiciary to the streets. Although he never directly took the verbal punch to the Chief Justice Martha Koome-led institution, he simply expressed displeasure with the judge’s decision to block the Act, which he had promised hustlers to provide jobs in the Affordable Housing project.

“Na hata wale mko na maamuzi mahali mko mjue ya kwamba... (even those with rulings wherever you are), you cannot subotage the employment of a million Kenyans because of selfish political interests,” said Ruto.

He continued: “Na mimi siwezi kubali kwamba tuko na nchi ya watu wengi ambayo watu wachache wanazuia ndio watu wengi wasifaidike (I will not allow in a country where we are the majority, only a few are blocking so that the few will not benefit).

Another battle that tested the soundness of the government’s decisions is that of Genetically Modified Organisms (GMO) foods.

At the peak of the dry season, when several parts of the country were facing hunger, the president lifted the ban imposed on GMOs to cushion the public from hunger. But this too did not see the light of day after the court stopped the importation of GMO foods following petitions by Kenya Peasants League, lawyer Paul Mwangi, the Bio-safety Association of Kenya and the Association of Kenya Feeds Manufacturers.

According to the petitioners, the ban on GMOs imposed in 2012 was to remain in force until such a time when there would be sufficient information, data and knowledge demonstrating that GMO foods are not a danger to public health.

Justice Mugure Thande agreed with their plea suspended the government decision and stopped the Ministry of Agriculture and the Ministry of Trade from allowing the importation of such foodstuff.

The government appealed the decision but Justices Mohamed Warsame, Abida Ali-Aroni and John Mativo again dismissed the application because there would be no prejudice suffered if the ban on GMOs remained in force.

The President was again entangled in a battle with the Judiciary after appointing a judicial commission of inquiry into the Shakahola cult deaths.

However, the court intervened and stopped the commission from commencing investigations following a petition by the Azimio la Umoja Coalition.

The petitioner accused the president of hijacking the criminal justice system saying that it was illegal for the President to appoint judges without reference to the Chief Justice.

Justice Lawrence Mugambi then suspended the commission of inquiry on grounds that the opposition coalition had raised weighty constitutional issues which must be determined before they are allowed to continue.

Environment and Lands Court Judge Oscar Angote also acted first to block Ruto’s decision to lift the six-year ban on logging, ruling that it will be improper to allow the continued felling of trees before a case filed by LSK is heard and determined.

And to cement its authority in checking the Executive, the High Court quashed Dr Ruto’s appointment of Bernice Sialaal Lemedeket as Principal Administrative Secretary and the accounting officer of the National Police Service.