The judiciary and the long fight to defend Kenya’s constitution

The Kenyan constitution is once again threatened by the executive and it is up to the judiciary to defend it.

The simmering conflict between Kenyan President Uhuru Kenyatta and the country’s judiciary over the supremacy of the constitution has once again burst into the open. This time the battle has been precipitated by the president’s attempt to usurp the powers of the Judicial Service Commission (JSC) to pick judges and judicial officers for the country’s courts. For two years, claiming secret adverse findings against them by intelligence services, Kenyatta has refused to formally appoint 41 individuals selected by the JSC to fill various posts including in the Court of Appeal. This is in defiance of the constitution, which affords him no discretion in the matter, and numerous court rulings affirming that. This week, he partly complied, appointing 34 of them, but petulantly continuing to block six others (one had died in the interim). His stance has been roundly condemned by civil society groups, parliamentarians and even the former chief justice, Willy Mutunga, who penned a scathing letter accusing Kenyatta of being “garlanded in the pettiness of performing power” and betraying his official oath. But this is not the first time Kenyatta is butting heads with the judiciary which, especially since the promulgation of the constitution 11 years ago, has become much more assertive in demanding compliance with the law from the political class.