Following weeks of bitter rows and mud-slinging between President William Ruto and judges, two separate courts have ruled against the government, both on matters close to the president’s heart.
Firstly, a court on Friday ordered the government to stop taking payments for a new housing levy and about an hour later, a different court said the president could not send 1,000 police officers to Haiti, as the president had promised the UN.
Analysts see this as a sign that judges remain fiercely independent despite what they see as the president’s attempts at intimidation.
Ruto has recently launched a series of extraordinary attacks on the Judiciary, accusing unnamed judges of corruption, while criticising those who went to court to stop government projects. He was responding to a previous series of rulings against his administration, one of which was last week overturned.
Before Friday’s rulings, Bobby Mkangi, a lawyer who was in the team that designed the current Constitution told the BBC Kenyans would, in light of the continued criticism of the Judiciary, “be keen on seeing whether now, we are going to see decisions which are more favourable to the State”.
Mkangi said the rhetoric against the judges had been “engineered towards achieving an outcome where the Judiciary will fall to the weight of the Executive”.
But this does not seem to have happened.
Law Society of Kenya president Eric Theuri told the BBC after the ruling on the housing levy that while the criticism was “in a way intended to intimidate the court”, the outcome of the case was “not surprising” as the government had presented a “very weak case”. “We expected and were hopeful the court would to look at the law and make the decision on the basis of the law and not anything else.”
Triggered backlash
In recent weeks, the president’s attacks on the judges triggered a backlash from Kenyans, including politicians and civil society.
Mkangi said the “Executive and presidency leading the onslaught” had created “pressure” against judges, adding that it remained to be seen whether this would translate to favourable rulings.
He said “the Judiciary did indeed feel the pressure and felt commanded by the pressure” to request an unprecedented meeting linked to matters live in court between the Chief Justice and the President.
But he also mentioned the “philosophy of leadership” of Chief Justice Martha Koome, who requested the meeting, adding that this was bound to arouse suspicion.
The meeting on Monday became a subject of intense national debate, amid a perception that the Judiciary was giving in to the Executive.
Chief Justice Koome herself had warned that the “threats and declarations” against the Judiciary were “extremely serious”.
She said they were an “assault against the constitution, the rule of law and the very stability of the nation and can lead to chaos and anarchy in our motherland”.
But her request to meet the president and her subsequent attendance raised questions.
Eric Theuri, the LSK president, told the BBC the outcome of the meeting appeared as if the Judiciary had gone to the Executive with a “begging bowl… Ultimately it goes towards undermining judiciary’s independence and autonomy.”
Ekuru Aukot, the leader of the opposition Third Way Alliance, told a local television station that the chief justice had allowed herself “to go into dialogue with the person intimidating them”.
The BBC contacted the government spokesman’s office and the presidency for comment on the accusations of undermining the judiciary.
After the meeting, statements by both the CJ and the presidency maintained that they were committed to upholding the rule of law and the independence of the Judiciary.
The Chief Justice said they had agreed that specific measures would be presented to speed up corruption cases. It was also resolved that MPs and the government would support increased funding for the Judiciary, including to hire more judges.
Criticism continued
Despite the meeting, the criticism continued.
On Thursday, the Kenya Magistrates and Judges Association (KMJA) said it had “noted with deep concern the continued atavistic attacks against the Judiciary, individual judges and magistrates by the political class even after the tripartite meeting”.
It said the courts would now consider taking legal action against individuals attacking the judiciary, individual judges, and magistrates.
Earlier this week, the Supreme Court took the extraordinary step of indefinitely barring prominent pro-government lawyer Ahmednasir Abdullahi from appearing before it, after accusing him of “running a campaign aimed at scandalising, ridiculing and out-rightly denigrating this court”.
Abdullahi said it was a “badge of honour” on X, and later said that he would file a petition against the ban at the East African Court of Justice in neighbouring Tanzania rather than “waste time in Koome’s corrupt court”.
The rift between the Judiciary and the political class is only expected to widen, as each side stands firm.
Despite the rulings, Ruto has vowed to continue with the government’s projects, which may result in further confrontation with the Judiciary.
There are fears that this could set the stage for other Kenyans to disobey court rulings, causing “anarchy” as the Chief Justice had warned.
The KMJA noted on Thursday that in the western town of Eldoret, “an elected political leader had mobilised and led a gang to destroy a property which is still the subject of litigation before the courts”.
As the court ruled on Friday, Ruto said he had enough public support to continue with the housing projects, which he said was creating many jobs for young Kenyans.
“The will of the people of the people is the will of God,” he said, speaking in Swahili to a crowd at a town in central Kenya, adding that the plan would continue despite the temporary setback.
The president said the government would appeal against the ruling and parliament would work on a new housing fund act that would allow the programme to continue.
One can only imagine Ruto’s reaction if that were then to be challenged in court.
