Kenya's new Constitution, enacted in 2010, was meant to usher in a new era of governance. However, President Uhuru Kenyatta's government, which took power in 2013, faced significant challenges in implementing the new law.
The Constitution emphasized the doctrine of separation of powers, where the executive, legislative, and judicial branches of government remain separate. However, the relationship between the executive and judiciary was marked by suspicion and tension, particularly during the tenures of Chief Justices Willy Mutunga and David Maraga.
One of the most notable incidents was in 2017, when Maraga's Supreme Court annulled President Kenyatta's election, citing irregularities in the poll. The court ordered a presidential re-run, which Uhuru won amid an opposition boycott.
However, the differences between the two branches of government continued to manifest. The head of the Judiciary, on several occasions, convened press conferences to decry frustrations from the executive, particularly on the issue of budget. According to Maraga, the budget cuts were 'intentionally' instituted to undermine judiciary programs and operations.
Another point of contention was the alleged failure by the Head of State to abide by court orders. The most prominent display of differences of opinion was the decision by the Head of State not to appoint all the judges recommended for various divisions of the Judiciary by the Judicial Service Commission.
However, things took a different turn with the appointment of Martha Koome as Chief Justice in May 2021. Koome adopted a different approach from her predecessors, one that emphasized consultation and cooperation with the executive.
She even scoffed at former CJ Mutunga for asking judicial officers to down their tools as a show of defiance to the executive. Koome made it clear that she would be 'consulting' the President from time to time on important national issues.
It was no surprise that shortly after she took office, 34 judges whom the President had no issue with were sworn into office, while the other six were left out, with little protest from Koome.
Chief Justices ¶
President Kenyatta's tenure has seen three Chief Justices at the helm of the Judiciary. When the Head of State was sworn into office alongside his deputy William Ruto, Justice Willy Mutunga was at the helm of the Judiciary. He later resigned and handed over power to Justice David Maraga in 2016.
Justice Martha Koome then succeeded her former Court of Appeal colleague, Maraga, in May 2021 after he retired at 70 years.
