Kenya enacted a new Constitution in 2010 but President Uhuru Kenyatta’s government, which came into power in 2013, was to ensure its full implementation.
The new law provided that the sovereign power of the people shall be vested in the Executive, the Legislature, and the Judiciary. But it also emphasized the doctrine of separation of powers where the three organs of government remain separate.
Even though this was as clear as black and white in the Constitution, the executive and the judiciary were unable to suppress their suspicion of each other. This formed the crux of the relationship between President Kenyatta’s administration and the judiciary.
This perhaps defined the tenures of Chief Justices Willy Mutunga and David Maraga’s relations with the executive. This relationship almost reached a breaking point 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 went on to win amid an opposition boycott.
Soon, the differences between the two organs of state began manifesting.
In fact, the head of the Judiciary on several occasions convened press conferences to decry frustrations from the executive, especially on the issue of budget.
According to Maraga, the budget cuts had been “intentionally” instituted with an aim to undermine judiciary programmes and operations. There was also the case of an alleged failure by the Head of State to abide by court orders.
But perhaps 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.
Whereas the JSC insisted that the 41 judges were above reproach, President Kenyatta was adamant that six of them failed the suitability test.
Things however took a different turn with the appointment of Martha Koome as Chief Justice.
The first female head of the judiciary in Kenya adopted a different approach from the one-take by her predecessors.
At one point she scoffed at former CJ Mutunga for asking judicial officers to down their tools as a show of defiance to the executive for allegedly treating the courts with contempt.
Koome asked Mutunga never to interfere with the way she runs the judiciary and went on to make it clear she would be “consulting” the President from time to time on important national issues.
It was no surprise that shortly after she took an oath of 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.
President Kenyatta appeared comfortable with Koome’s style.
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.
Important to note is that Maraga after his retirement handed over the instruments of power which included an original copy of the constitution and the institutional flag to the acting Chief Justice Philomena Mwilu.
She was appointed in May by the President after coming top of 10 candidates interviewed in front of a live television audience by Kenya’s Judicial Service Commission (JSC).
