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We raised alarm when information emerged that the head of the Judiciary Madam Martha Koome was seeking a meeting with the head of the Executive Mr William Ruto supposedly to iron out differences between the two branches of government. This followed a threat by Ruto and some members of his party and the administration against the Judiciary following a string of unfavorable rulings against the Executive.
We warned that there was more than met the eye in the threats by Ruto and the request for a meeting by madam Koome. We warned that Mr. Ruto’s real intention was to complete the capture of the branches of the government by the Executive by taking over the Judiciary, force it to forever rule in his favour, in addition to populating the institution with loyalists. We also warned that in this entire plan, the Judiciary was showing signs of willingness to prostate itself before the presidency in an arrangement that spells grave danger for the rule of law and the entire country.
We now know what transpired at the State House meeting and it is completely different from the lie the country was fed after that event. We can now confirm that there exists an elaborate plan that will allow Mr. Ruto to appoint friendly judges to the Judiciary, with the complete concurrence of chief Justice Koome. This was among the issues discussed and agreed on during the ill-advised meeting between Ruto and Koome at State House.
At the meeting the Chief Justice and Mr Ruto reached an agreement that will supposedly allow Mr. Ruto to provide additional funding to the Judiciary. In return for this additional funding, Justice Koome is to advertise vacancies for five additional High Court Judges and 11 Court of Appeal judges. This is in addition to the 20 high court judges advertised last year. In that agreement, the five High Court Judges and two Court of Appeal Judges will be for Mr. Ruto to forward to the JSC. And he floated the names. Immediate former IEBC Chairman Mr. Wafula Chebukati and former IEBC Chairman Ahmed Isaac Hassan are to be appointed as Court of Appeal judges with Chebukati be later elevated as the Chief Justice before 2027 General elections.
The targeting of the High Court and the Court of Appeal by Ruto is intentional. The administration believes it has completely captured the Supreme Court and now wants to target the problematic lower courts by staffing them with loyalists, with the cooperation of the Chief Justice. After filling the Executive with people of questionable integrity and capacity and who will remain eternally grateful to him, Ruto is looking to set up a user-friendly Judiciary, full of people with questionable past and limited capacity. And, unfortunately, the Chief Justice is gladly smiling along and playing ball.
Officially, Mr. Ruto is supposed to have agreed to give additional funding to the Judiciary. That is a cover up. The Judiciary does not draw any funding from the Executive or State House. Article 173 of the Constitution of Kenya established the Judiciary Fund which is administered by the Chief Registrar of the Judiciary. The provision on Judiciary Fund as contained in Article 173 states:
(1) There is established a fund to be known as the Judiciary Fund which shall be administered by the Chief Registrar of the Judiciary. (2) The Fund shall be used for administrative expenses of the Judiciary and such other purposes as may be necessary for the discharge of the functions of the Judiciary. (3) Each financial year, the Chief Registrar shall prepare estimates of expenditure for the following year, and submit them to the National Assembly for approval. (4) Upon approval by the National Assembly, the expenditure of the Judiciary shall be a charge on the Consolidated Fund and the funds shall be paid directly into the Judiciary Fund. (5) Parliament shall enact legislation to provide for the regulation of the Fund.
The presidency cannot allocate any money to the Judiciary. Madam Koome knows this, and yet has willingly proceeded to associate herself with and endorse an illegality. Why Koome sought money from State House and not from Parliament, only she can explain, but it spells doom.
To the best of our knowledge, the Judiciary has never said that it submitted budget estimates to Parliament and it was rejected. We have not seen any petition by the Judiciary to Parliament over rejection of submitted budget estimates if any. We challenge Ms. Koome to prove otherwise.
Ruto is engaged in manoeuvres designed to mitigate the ability of the courts to act as a check against Executive power at a time he has already muzzled legislative power through the capture of Parliament. And if you want to know that the National Assembly is captured, take note that National Assembly Speaker Moses Wetangula filed a Notice of Appeal at the Supreme Court challenging Appeal Court decision that declined to extend order allowing Housing Levy deductions. The Housing Levy is being imposed by the Executive, which is also the branch of government who lost at the Court of Appeal. But it is Mr. Wetangula who has moved to the Supreme Court.
His loud protests against court rulings are meant to intimidate and paralyze courts. The latest move agreed on at the meeting with the Chief Justice are meant to enable him pack the courts with Kenya Kwanza-friendly appointees.
The scheme is further meant to transfer certain judges from the courts to the IEBC so that Ruto has a grip on the courts and the election management body as well.
Where this country goes from here should Ruto complete his intended capture of all branches of government should be everyone’s worry. The capture of the Judiciary of all institutions is the beginning of a steady descent into anarchy. It is the beginning of the embrace of the law of the jungje instead of the rule of law.
Impunity and capture of independent institutions by a corrupt Executive is what drove Kenya to war in 2007-2008. A repeat exercise seems to be underway, and the results might not be different.
Still, when the JSC advertises vacancies next week, Kenyans will know what it means and who will get the jobs. It means five new judges picked by Mr. Ruto for the High Court and two judges in the name of Chebukati and Hassan equally picked by Ruto; and the descent into the abyss will get a new momentum.
In the meantime, we challenge Mr. Ruto and Madam Koome to tell the truth about their meeting.
