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

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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.

For much of Kenya’s history, judicial independence has been a myth. In colonial times, judges served at the pleasure of the Crown and lacked independence. As Mutunga observed in 2013, they were essentially “a civil service, beholden to the colonial administration and very rarely minded to stand up to it”.

Although at independence in 1963, the constitution protected judges, deliberately insulating them from executive power, it proved no match for the ingrained habits of judicial subservience to executive tyranny that had been bred and........

© Al Jazeera

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