This archive report was first published on 10 June 2020.
Published on June 10, 2020, the Judiciary and the Executive are engaged in a war of wits over constitutional questions.
At the heart of the dispute are two key issues: President Uhuru Kenyatta's refusal to appoint 41 judges who had been interviewed and recommended by the Judicial Service Commission (JSC), and the Executive's failure to obey court rulings.
These actions depict the Executive as recalcitrant and an impediment to the rule of law.
Chief Justice David Maraga has taken exception to the President's actions, but has chosen to prosecute his case in the public court rather than engaging in boardroom discussions with the President or members of the Executive.
Mr. Maraga's approach has been criticized, with some suggesting that he is paying the price for nullifying President Kenyatta's election in 2017.
However, the issues that the CJ canvasses are weighty, including the drastic cuts to the Judiciary's budget and the insufficient funding that forces the Judiciary to cut on staff recruitment, expansion of courts, official travel, and acquisition of resources.
These cuts have resulted in a huge case backlog, an injustice to citizens.
The appointment of judges is expressly articulated in the Constitution and the Judicial Service Act, with JSC mandated to nominate candidates for appointment to the President in a competitive process.
The President's hands are tied, and he must articulate any reservations in writing to the JSC.
Non-compliance with court orders undermines the authority of the judicial system and brings into question the Executive's fidelity to the rule of law.
President Kenyatta and Mr. Maraga must work collaboratively to resolve these issues and respect the cornerstone of the 2010 Constitution, which disperses powers, strengthens institutions, and divests untrammelled powers from the Executive.
