The onslaught against President Uhuru Kenyatta for not appointing six judges nominated by the JSC to the Court of Appeal is revealing a macabre plot to create a monster Judiciary in the country.
Practicing and retired judicial officers have ganged up with NGOs and Uhuru political detractors to viciously pour cold water on the President’s decision.
Indeed, those detractors have spared no time to shoot down any perceived or real reasons why the Head of State might have declined to appoint the six judges.
To them, Mr Kenyatta is a conveyor belt and his only duty is to append his signature to what JSC has presented to him like a zombie.
According to these judicial activists, constitution 2010 is irrelevant by being relevant.
They are telling Kenyans that it is in order for the President to decline to assent to Parliamentary bills albeit with memoranda, but not JSC’s decisions.
The seperatists’ grand plot is to mould the Judiciary as an autonomous and independent arm of government.
This grand scheme must be resisted by Kenyans because creating a monster judiciary or any other institution for that matter will gravely undermine the system of checks and balances.
The outcome of an overbearing judiciary has its footprints in court rulings, some of which borders on the bizarre.
With a hindsight, it appears there is a deliberate plot to pile up controversial unenforceable rulings against the executive in order to portray the latter as an impunious arm of government.
It is is now emerging that a cabal of recalcitrant activists and political litigants are poisoning the minds of Kenyans by playing the judiciary is victim and the President as villain.
Leading the pack are two former Chief Justices, Willy Mutunga and David Maraga.
These two presided over the judiciary without making any attempt to harmonize relationship with the parliament and executive.
To them the judiciary enjoys absolute independence.
They belong to the inflexible school that advocates for straight-jacket relationship between constitutional offices.
That the president and Chief Justice, the Speakers of both Houses or any top government official/s cannot interact socially unless officially with one another for fear of either being perceived to be plotting, dictating or seeking favour is to say the least primitive indeed.
Even the countries where we have heavily borrowed constitutional and democratic ideas, this does not happen.
Before retiring, Justice Maraga issued an advisory to the President to dissolve parliament citing lack of two-third gender representation as requirement by the constitution but hardly has he settled down to enjoy his retirement benefits, he is now advising the yet to be dissolved parliament to impeach the president.
This habit of speaking in tongue is very common even in judicial rulings. The recent High Court ruling that the president can be sued for flouting the constitution, yet he cannot initiates a constitutional amendment is another goof by the bench.
Court rulings aside, the constitution has clearly stipulated interdependence of arms of government as a cardinal principle upon which seamless governance and administration of services could be achieved.
Certainly, the three arms of government cannot operate in harmony in the absence of tacit understanding where the buck stops.
In my view we do not talk about “The buck stops with the PRESIDENT for nothing”.
Furthermore, it is pointless to complain about executive dictatorship and be silent on emerging judicial rogueness.
However, legal academicians and constitutional theorists favour a roughshod-riding judiciary that is coumoflaged under the guise of letter and spirit of the constitution.
This is extremely egoistic and unacceptable to pragmatic constitutionalists.
Therefore, any attempts to undermine the President’s role as a symbol of unity could set a dangerous precedence for the country.
If there is a positive quote President Uhuru could borrow from Mr Maraga, is the, “Fidelity to the Constitution”.
Such Fidelity must and should be exercised in a manner that doesn’t negates the spirit of the Supreme Law.
In other words, the constitution did not envisage a situation whereby those entrusted with interpreting and implementing it together with it serves are not human beings.
Finally, it has not given any arm of government absolute independence nor power over the others.
Fortunately, it has outlined the template upon which governance, justice and legislation could achieve a unity of purpose that is beneficial to all citizens.
This is why creating an imperial judiciary will not augur well for this country and its citizens.
Kaunda wa Muchunku
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