Tension between Executive and Judiciary is necessary

**When President William Ruto presided over the swearing-in of twenty new judges** **of the High Court at State House Nairobi on December 7, 2022.** [Wilberforce Okwiri, Standard]

A lot has been said about the apparent tension between the Executive and the Judiciary. Some have posited that it presages the return of the dark old days of imperial presidents who steamrolled their will over all institutions. Others have suggested that it is a precursor to the Constitution being held in abeyance; the coup de grace that now makes Executive capture of all State institutions complete.

Nothing could be further from the truth. If there is tension between these two arms of government, it is a necessary tension. Indeed, such tension is ordained by the sovereign (we the people of Kenya). Should the Executive and the Judiciary become overly cozy, it is the people who suffer. In a functioning democracy such as Kenya’s, the Executive has certain coercive abilities. Where they are deemed to have impugned the fundamental rights and liberties of citizens, it is the courts that these citizens go to for solace. For instance, the Executive has the monopoly of legal violence. Only the courts can fetter that violence from being visited on citizens willy-nilly. And this is an outcome of the 2010 Constitution.

One remembers the past when the Judiciary was an adjunct to the Executive; when judges were appointed and dismissed at the pleasure of the President. Most judges cozied up to the President for personal survival. The law then was a mere suggestion as the rights of perceived enemies of the State were trammelled. A couple of incidents come to mind. Politician Koigi Wamwere had a fictitious robbery with violence charge against him for which he was sentenced to four years in prison and three lashes of the cane. The invisible hand of the Executive was seen throughout the conduct of the case described by some journalists as, “a total disgrace.”

The second incident has to do with the presidential elections of 2007. In these elections, the incumbent appeared to be losing to the opposition leader. The whole vote-tallying process was in a disarray leading to the conclusion that it was impossible to tell who won, and this, by a commission subsequently appointed to investigate the elections. Yet, President Mwai Kibaki was sworn in by the Chief Justice. The camaraderie between the two was rather evident. The violence that erupted following this farce is what precipitated the conclusion of constitutional reforms giving rise to the 2010 Constitution.

This Constitution has since been tested and found to be working as it should. Former president Uhuru Kenyatta had a rather frosty relationship with the Judiciary. It worked to the advantage of citizens. Kenyatta’s attempt to amend the Constitution to cement a pact between him and Raila Odinga was stymied by the courts.

President Ruto has gone out of his way to thaw frosty relationships with the Judiciary. He has appointed judges overlooked by his predecessor in a fit of pique and released subventions due to the courts. However, he now finds himself subject to court rulings that have halted several of his projects. Unlike his predecessor, he should be aware that the Judiciary, when attacked, is only able to respond through its rulings and judgments. Anyone with an eye on the elections of 2027 should be mindful of this.