Former Prime Minister Raila Odinga has accused President Uhuru Kenyatta of attempting to take Kenya back to the days of a dictatorial presidency with the assistance of pliant MPs.
He said President Kenyatta’s criticism of governors and the Judiciary was risky because, combined with the attack on the Judiciary by MPs, Kenya would be “closely flirting with the law of the jungle”.
Mr Odinga’s strongly worded statement came in the wake of President Kenyatta remark at a meeting in Belgut, Kericho, on Friday that the Judiciary is seeking refuge in the separation of powers among the three arms of government.
President Kenyatta spoke after Senators Prof Kindiki Kithure (Tharaka Nithi), Kipchumba Murkomen (Elgeyo Marakwet) and Charles Keter (Kericho), as well as National Assembly Majority Leader Aden Duale and other MPs, vowed to deal with “rogue” governors “conspiring to stop Parliament from playing its role”.
In a rare show of unity, senators and National Assembly members have planned a joint informal meeting in Parliament on Tuesday to come up with ways of dealing with the governors and the Judiciary.
But in response on Saturday, the President’s spokesman Manoah Esipisu said Mr Odinga’s claims are misguided as the law on oversight was clear and is on the side of Parliament and the Senate.
“The President himself was perfectly clear: since he is accountable to Parliament, the county governors must also be accountable to it. Parliament must be allowed room to play its oversight role, necessary as it is for the rule of law in this country,” Mr Esipisu said.
He said Mr Odinga was wrong to insinuate that the President was taking the country back to the days of a presidential system.
“Far from signalling a descent into dictatorship, the President’s defence of accountability, the rule of law, and the interdependent relations among the three branches of government, all advance constitutional government under law,” he said.
But according to Mr Odinga: “This is a mob lynching of the court and a shameful display of arrogance to the rule of law by the very people who swore to uphold it. It must stop. We must keep our hands off our courts.”
He suggested President Kenyatta’s taking sides with Parliament would establish a country of presidential and legislative tyranny.
In such a scenario, said Mr Odinga, “no other institution in and out of the government will be allowed a voice.”
“I don’t agree that the Judiciary is seeking refuge in the doctrine of separation of powers. I believe the alternative to adherence to this doctrine is the law of the jungle where one person can purport to perform the functions of president, judge and parliament at the same time. That is what is called a dictatorship.“I agree that the Judiciary alone cannot serve Kenyans. Neither can the Executive nor the Legislature alone,” he added.
Senators and MPs have come up with suggestions on how to deal with governors and judges, some of which are outright impossible, such as the vetting of judges appointed after the enactment of the Constitution in 2010. However, other measures like the threat to reduce funding for the Judiciary, are real and practical.
According to Prof Kindiki, the Senate Majority Leader, the Senate Committee on Finance, Commerce and Economic Affairs can invoke constitutional provisions and other laws to deal with “the condescending behaviour by some governors who have contemptuously refused to appear before the committee’’.
Nine governors have obtained a court order barring them from obeying summons by the committee chaired by Mandera Senator Billow Kerrow.
In the National Assembly, some MPs have suggested that when the time comes, the Judiciary’s Budget estimates for the next financial year could be reduced significantly.
But some MPs disagree with the approach adopted by their counterparts, with a group of six from Mr Odinga’s ODM party saying yesterday the ongoing fights are unnecessary and could play into the hands of those opposed to devolution.
Speaking at a funeral on Rusinga Island, they said the war between Parliament, the Judiciary and governors is likely to push Kenya into a paralysis.
Those at the funeral of Mbita MP Millie Odhiambo’s relative, were Jakoyo Midiwo (Gem), David Ochieng (Ugenya), Silvance Onyango Osele (Kasipul Kabondo), Agostinho Neto (Ndhiwa).
Siaya Senator James Orengo was of a different opinion and defended the Senate’s action.
“If Parliament, Judiciary, the Senate and governors cannot embrace sobriety and resolve their conflicts quickly, then the country is headed to the dogs,” said the Mbita MP.
They accused some powerful forces opposed to devolution of using members of county assemblies to frustrate governors.
But speaking yesterday during the thanksgiving giving ceremony of Uasin Gishu County Women Representative Eusila Ngeny at her Ziwa home, Jubilee leaders renewed their criticism of the Judiciary for undermining the Legislature. Majority leader Aden Duale also dismissed Mr Odinga’s comments.
“Raila Odinga is an ordinary Kenyan who doesn’t talk for any arm of parliament unlike President Uhuru Kenyatta who was overwhelmingly voted by Kenyans during the last elections. President Uhuru Kenyatta has the mandate to talk for any arm of government and rectify where necessary,” Mr Duale said.
And in an interview with Sunday Nation Mr Njoroge Baiya, the chairman of the Constitutional Implementation Oversight Committee, said politicians might also be missing the point and subsequently attacking the Judiciary needlessly.
He said in the case where the nine governors obtained orders stopping them from heeding the summons of the Senate committee, the Senate should have been represented in court.
By leaving the governors to go to court unchallenged, he said, it was certain the Senate would lose and, although senators and MPs can rage against judges, the fact is they are losing constitutionally.
“The court does not move itself. It is moved by an aggrieved citizen. It doesn’t matter whether this aggrieved citizen is right or wrong as the governors in this case are. Our system is an adversarial system. If you actually don’t appear and keep quiet, the die is cast. The court has no choice,” he said.
He said that under the Constitution, the system of checks and balances is well established and the limits of each will be established in the course of the current disputes.
“We need to tone down and appreciate that under the current Constitution, power has been dispersed to so many organs of State. It’s always good that whenever you see an institution exercising its power, find out exactly whether it is acting within the Constitution,” he said.
Senior Counsel Paul Muite said that, if accomplished, Parliament’s plots relating to the Judiciary would only end up hurting taxpayers.
Cutting funds to the Judiciary would also punish the people who seek justice in the courts because judges would continue getting paid as their salaries are drawn from the Consolidated Fund.
POWER BELONGS TO WANJIKU
Because of the row with the Judiciary, President Kenyatta has not appointed 25 judges recommended by the Judicial Service Commission after competitive recruitment. The appointment of three new JSC members is also pending.
“If Wanjiku has donated power that belongs to her to these institutions, then Wanjiku didn’t donate that power to be used negatively against her. She delegated it to promote her own interests. Each institution should ask themselves whether they are using that power well,” said Mr Muite.
He said Parliament, the Judiciary and the Executive should exercise maximum restraint and respect for each other.
Like Mr Baiya, the senior counsel was also of the opinion that the Senate and the National Assembly should send lawyers to the court to try to persuade judges that their interpretation of the Constitution is sound.
He said decisions from the court can be appealed up to the Supreme Court, and when it issues its verdict, everybody should comply even if, like the Cord coalition in March last year, they disagree with it.
Mr Gibson Kamau Kuria, another senior counsel, said: “Those criticising the Judiciary are the beneficiaries of the status quo which the Constitution was made by the Kenyan people to disturb or shake up in 2010.