Violation of the Constitution of Kenya by President Kenyatta

To
The Judicial Service Commission,
Thro’
The Hon. The Chief Justice,
President of the Supreme Court of Kenya &
The Chairman, Judicial Service Commission,
Supreme Court Building,
Nairobi.

I write this letter to express my exasperation with the continued violation of Kenya’s constitution by President Uhuru Kenyatta. The latest incident where the president purported to veto a judicial decision to suspend the recruitment of 10,000 police recruits because of corruption and bribery, calls on the Judicial Service Commission (JSC) to assure Kenyans that courts still have meaning in this society.

It should be noted that in 2007 Kenya plunged into apocalypse majorly because the political protagonists in the stolen presidential elections did not see any meaning of taking their grievances to the courts because the judiciary was perceived to be an appendage of the executive arm of government. President Kenyatta’s latest actions show that he is determined to drive this country back to the pre-2007 situation.

The following incidents, among many others that I am not able to enumerate here convince me that Kenya is at a crossroads and we are staring at a constitutional crisis that might lead this country to anarchy:-

1. About two years ago, the JSC interviewed and recruited 25 judges to serve in the High Court of Kenya. To the consternation of many Kenyans, the president defied the JSC, picked some judges he felt were the best, and declined to affirm a number of others. The president purported, and he continues to purport that his office is carrying out further background checks on the appointed judges. I am informed that the president has no constitutionally recognized role in conducting any background checks before he could affirm those hired to serve as High Court Judges in Kenya. To date the president has failed to have the judges sworn into office. I understand his role in the appointment of High Court judges is a ceremonial function. The JSC has not done enough to protest this blatant violation of the law. I am aware that the LSK took up the matter to court.
2. When the JSC ordered the suspension of Gladys Shollei on graft allegations, parliament immediately reprimanded the judiciary, took up the matter and purported to overrun, and or gag the JSC from conducting its functions. To show their contempt of the judiciary, parliament purported to summon the Chief Justice for grilling. To his credit, the CJ declined to obey those illegal summons.
3. In the latest incident, the High Court heard and determined a case against the graft-riddled police recruitment exercise of 2014. A ruling was made declaring the exercise illegitimate because of the rampant corruption that characterized the recruitment. The president took advantage of the tragic terrorist attack of Garissa university to rubbish the judiciary’s determined case to order the Inspector General of Police to ignore the ruling and have people recruited through a tainted process to report to college for training. The president said he takes “responsibility” for disobeying the law? or for the questionable recruitment process? when he ordered for the court ruling to be disregarded.

While I appreciate the efforts the Hon. the Chief Justice has made to dialogue with the other government agencies, I strongly feel that a lot more needs to be done by the JSC to assert itself by stating its position that it does not exist at the pleasure of either the presidency or parliament. In fact, contrary to the constitution that clearly states that the three arms of government are distinctly independent of each other, both the executive and legislative arms have increasingly treated the judiciary as an irrelevant entity to the two. The judiciary has failed to contest this well calculated scheme to render it ineffective.

The Judiciary has also failed to address some of the fundamental constitutional issues such as enforcing Chapter VI (Six) on Leadership and Integrity. I understand this question is pending in Court but I do not know why such an important question should remain in the courts eternally. I feel that the judiciary has technically abrogated its constitutional duties of correctly interpreting the constitution, and also handing down deterrent sentences to those found violating the constitution. None of the politicians who are the lords of impunity in Kenya has ever been punished sufficiently to send a message that it is not business as usual. It has allowed both parliament and the presidency to run amok, breaking the law at every turn. We are now staring at a constitutional crisis.

It is corruption that is to blame for the terror activities in Kenya and NOT lack of security personnel as the president claimed.

We lost our fight against impunity in 2013 when the new judiciary failed to properly and correctly interpret the constitution, especially on the now apparently technically suspended Chapter VI on Leadership and Integrity. Indicted suspects of international Crimes and Crimes Against Humanity were allowed to contest the presidency contrary to the law. Yet, a section of Kenyans went to court to challenge the candidature of the suspects but the courts dismissed the cases.

Parliament has continued to purport to legislate on various issues but in essence the MPs have been systematically mutilating the constitution. The Attorney General who should have provided legal guidance has acted in cahoots with the violators of our constitution. My worry is the judiciary, and especially the Supreme Court has not done enough to reign in on these people. The long-term consequences of the president’s actions and the rogue behavior of parliament, is certainly going to be far-reaching. Many Kenyans will lose their faith in the judiciary. The results will be disastrous.

I hope the JSC will find a few things from the above list worth considering. We can’t continue this path indefinitely.
Thanks for your time.
Yours truly,
/S/
Peter Makori

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