Courts leave Kibaki with eroded authority

What you need to know:

  • Courts overturn President’s decisions, raising questions on the quality of advice his aides give him

President Kibaki has suffered a series of setbacks in court and in Parliament since the passing of the Constitution, raising concern that the trend could weaken his authority if it continues.

The country has witnessed a series of bold court rulings quashing presidential decisions, particularly on key government appointments.

After the promulgation of the Constitution, the courts and Parliament have, on more than five occasions, left President Kibaki with egg on his face by rejecting his appointees to critical offices.

“Court nullifies Kibaki nominees” has become a familiar newspaper headline.

In January 2011, the Head of State lost his bid to appoint top judicial officials, and recently his appointment of county commissioners and members of the National Health Insurance Fund board were reversed by the courts.

There was also the case of East African Portland Cement where the President’s appointment of the board was annulled by the High Court.

The President’s decisions in all the instances were declared unlawful.

The government has lost a string of cases, and officials have been forced to appeal most of the time to save face. The pattern has been predictable and the frequency alarming.

Last Wednesday, the State was caught flatfooted when it lost a case against the Mombasa Republican Council, a proscribed group which has been pushing a secessionist agenda.

A three-judge bench declared a Gazette notice banning the MRC unconstitutional, thus allowing its members freedom to meet and pursue their agenda.

Attorney-General Githu Muigai has indicated that he will appeal the judgment, which came barely a week after another court suspended the NHIF board, saying President Kibaki did not follow the law in appointing it.

These court decisions have not only eroded the President’s authority but also raised questions about his judgment as well the quality of advice available to him.

State counsel Paul Muite says that in addition to embarrassing the President and exposing him to criticism, the court decisions project Mr Kibaki as an unapologetic violator of the Constitution that he swore to defend, and as a “perennial law-breaker”.

Follow the law

The running theme of the rulings has been that the President did not follow the law.

“The court judgments continue to leave the President embarrassed ... humiliated and his wisdom questioned,” said Mr Muite, a presidential hopeful.

In the NHIF board case, Mr Justice Weldon Korir said there was an apparent non-compliance with the provisions of the law.

“The court cannot allow an illegality if such an illegality has been brought to its attention,” he said.

The petitioner, the Kenya Medical Association, had accused the President of failing to follow the law requiring the appointment of a nominee from the Kenya National Farmers’ Union. The court agreed with the union.

Last month, the Cabinet was split down the middle when the High Court ruled that the President had breached the Constitution in the appointment of the 47 county commissioners.

In her June 29 decision, High Court Judge Mumbi Ngugi declared the appointments null and void.

“The President did not have powers to appoint the county commissioners as he had purported to do,” she said.

Her argument was that in making the appointments, the President did not consult Prime Minister Raila Odinga as required by the National Accord. She also said the appointment of the commissioners did not satisfy the gender balance requirement set out in the Constitution.

Following the decision, the Attorney-General advised the government not to contest the ruling, but in an uncharacteristic move acting Internal Security permanent secretary Mutea Iringo hired private lawyer Mr Kibe Mungai to appeal.

The county commissioners debacle is reminiscent of the nomination of Mr Alnashir Visram as chief justice, Prof Githu Muigai (AG) and Dr William Kirwa as Director of Budget by the President.

He was forced to eat humble pie when Parliament rejected the names.

While Mr Odinga’s Orange Democratic Movement was opposed to the nominees, the President’s Party of National Unity supported them.

Then on February 3, 2011, High Court Judge Daniel Musinga declared the nominations unconstitutional.

Servant of executive

Various analysts view the current presidency as one stuck in the past. The Judiciary, now headed by a former political detainee, has quickly embraced the 2010 Constitution and made it clear that it is no longer the servant of the executive.

Mr Charles Nyachae, who chairs the Constitutional Implementation Commission (CIC), said the new constitutional order has re-asserted and re-installed the independence of the Judiciary.

He added that the country was experiencing “transitional challenges”.

Mr Nyachae blamed the scenario on an assumption that the presidency is superior to other organs of government.

“In the new order, the Constitution is supreme, and all its creatures, including the Presidency and Parliament, are subordinate to it. While the Judiciary is progressive, the executive is lagging behind,” he told the Sunday Nation.

Mr Nyachae pointed an accusing finger at the President’s advisers.

“Those bureaucrats informing the President’s decisions are yet to embrace the new dispensation. We require a change of mindset by those advising the President,” the CIC chief said.

While agreeing with his colleagues, Law Society of Kenya chairman Eric Mutua accused the Executive of applying the new rules with the old mindset.

Mr Mutua criticised the office of the Attorney-General saying it was making weak arguments in court cases.

Citing the MRC case, Mr Mutua said the AG had “no material evidence” to demonstrate to the court that the group was a threat to national security.

In addition to the AG, President Kibaki has Prof Kivutha Kibwana as his adviser on constitutional affairs.

The public eye is usually on Prof Kibwana, a constitutional lawyer and scholar, whenever the President’s decisions, such as the appointment of county commissioners, are overturned by the courts.

But speaking to the Sunday Nation, Prof Kibwana defended the President’s advisers and his resolve to protect and implement the Constitution.

He said the President and those around him had invested heavily in the enactment of the Constitution, and, therefore, could not undermine it.

He said the fact that one arm of government did not agree with the other was not a recipe for disaster, nor did it imply that one organ was wrong.

Positive sign

“Every arm has its responsibilities. The disagreements are a positive sign of our expanding democracy,” he said.

Prof Kibwana said the arms of government should not try to intimidate one another.

“We are dealing with the law. They are saying that the President’s decisions are serially wrong, but that is contestable. That is why the Executive has appealed.”

Mr Muite says that in the past, the law was not for the rulers; it was meant for the governors.

“That is how we ended up with an imperial presidency, but creatures of the new Constitution have reversed the order,” he said.

The legal missteps have not only made the President lose face but have also made him the butt of jokes on social media.

Shortly after the High Court suspended the NHIF board, one blogger had an interesting proposal: “The President should let the High Court make the appointments.”

But the LSK boss has cautioned against “a level of judicial activism”, which he says is not good for democracy.

He particularly faulted the High Court ruling suspending the NHIF board.