The furore that greeted the gazettement by President Uhuru Kenyatta of 34 of the 40 judges whose appointment has been in limbo for almost two years brings into sharp focus the Constitution and its enhancement of a nascent democracy.
While the Constitution, which was largely civil society-driven to tame the excesses of the Independence time laws that had been systematically mutilated over the years to create an all-powerful and imperial Presidency, has been lauded as progressive, it can easily plunge the country into a constitutional crisis if recklessly interpreted and applied.
The fact is that the hurry and blind fury that fuelled the push for a new constitution was framed against the Kanu and the late President Daniel arap Moi. And caught in between the governance tussle pitting Moi and the civil society was the ordinary citizen, commonly known as Wanjiku. In this scenario, the civil society emerged as the champion of Wanjiku’s welfare against the excesses of then political elite.
But this hard-won freedom to disperse power from the centre to other institution to ensure the delicate
checks and balances for the good of the citizenry could be in jeopardy going by the recent antagonism between the Executive and Judiciary.
That the Judiciary is flexing its muscles and is on the roll and furiously jabbing at the Executive at every given opportunity does not bode well for the country. The two year stalemate over the appointment of the 41 judges interviewed and recommended to the President for appointment has had far-reaching ramifications on the delivery of jus tice cannot be gainsaid.
For instance, the consequence of this unfortunate standoff is the piling backlog of cases, which is costly to the cause of justice and service delivery to the public. This is why instead of condemning the President for appointing the 34 judges as the cases of the six rejected colleagues are sorted out, should be lauded as a step in the right direction. It shows that where there is a will there will be a way.
The current trend where the Judiciary and its cheer leaders are keen to use every opportunity to embarrass the President by nullifying every appointment he makes is akin to denying the fact that Uhuru is an elected president through universal suffrage with a mandate to safeguard the welfare of the country.
He occupies a vantage position as head of state and government. He, for instance, enjoys first-hand intelligence reports and other privileged briefings from State agencies in the execution of his duties as opposed to other arms of government.
And as the symbol of national unity, he is the confluence of the activities of other State actors, including all the arms of government, which though independent are inter-dependant in their service delivery. The emerging trend of dangerous attempts to relegate the President to a mere spectator in the running of his government using the so-called letter of the law and negating its spirit element is not only detrimental to democracy, unity and stability, but carries the threat of stalling public services and even politically undermine Uhuru.
We must resist such evil machinations by activist Judiciary. To cure such mischief and other constitutional ambiguities, we all need to support the Building Bridges Initiative spearheaded by President Uhuru and former PM Raila Odinga. We, as a matter of urgency, without rebuilding the imperial presidency agreed to create legal space for the requisite respect for the Presidency, the symbol of or national unity.
A figurehead president with the fledging and unfettered institutional independence is a risky venture for a country that needs rallying centre to overcome our many challenges.
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