Third Eye

Courts should balance letter of law, national interest

Thursday, November 18th, 2021 00:00 |
A bench of Supreme Court judges during a past session. Photo/PD/File

 In May, lawyer Paul Mwangi wrote extensively about judicial activism and explained how Kenya’s Judiciary had been captured by civil society. 

In his analysis, Mwangi said there was a clique of judges who were planted in courts by the civil society to undermine and frustrate the government.

Although his argument was contested, the recent series of rulings have confirmed beyond doubt that activist judges are determined to frustrate the Executive.

Early this month, a High Court judge unilaterally declared Huduma Namba, an ambitious, transformative and multi-billion-shilling government project, as a “useless” undertaking.

Huduma Namba was launched by President Uhuru Kenyatta in April 2019 to create and manage a central master population database to serve as the “single source of truth” on a person’s identity.

The database was supposed to contain information of all Kenyan citizens and foreign nationals residing in Kenya to serve as a reference point for ease of service delivery to the over 50 million Kenyans.

Such complex and tedious undertakings are prone to flaws either at the design or implementation stage. But no number of flaws will make it useless as the judge may want us to believe.

The suspicious judgment came hot in the heels of yet another  ruling that saw both the High Court and the Court of Appeal put brakes on the Building Bridges Initiative (BBI).

The five High Court judges who presided over the matter literally suspended the law and blatantly decided to wage personal war against the President.

They stripped him of his privileges as a sitting President and even tried to expose him to prosecution.

The Court of Appeal bench, although fairly considerate, still upheld the High Court decision despite pointing out a raft of flaws and mishaps in the ruling of the lower court.

Last month, the High Court ordered the President to appoint the six judges who were rejected over existing adverse reports about them within 14 days, or they would be deemed appointed upon expiry of the specified period.

In a rather baffling order that accompanied the judgment, and which has become a subject of discussion, the judges directed the Chief Justice to swear in the six if the President would not have appointed them after 14 days.

In essence, the court stripped the President of the power to appoint judges as enshrined in the Constitution and made it an optional role that can be bypassed. 

Away from the one-sided rulings, the courts have been out on a field day dishing damaging and contemptuous orders to specific individuals to frustrate government projects and policies.

They operate a web whose role is to push the government to the edge and defend associates implicated in criminal cases.

Last year, the President exposed a certain activist who got 99 per cent of all the court orders he sought. Interestingly, most of the orders were targeting the government.

For instance, in October 2017, the activist went to court to seek orders to stop the importation of duty-free sugar, which the High Court granted.

In 2018, the same activist filed a case seeking to suspend the implementation of the police reforms announced by Uhuru. He argued the President had no such powers. The court issued him with an injunction.

The same network is fighting the new Competence-Based Curriculum (CBC).  It’s clear the network is determined to go to any lengths to create a crisis and push the leadership of the country to the edge.

The Judiciary should desist from dashing to hijack cases and situations to settle scores with the Executive at the expense of the people.

Judges should learn to be impartial, considerate and always apply Solomonic wisdom when dealing with matters of public interest.

Otherwise, history will judge them harshly for wrecking their motherland.

—The writer comments on social, economic and political affairs

More on Third Eye