With the opposition now embedded in government, President Uhuru Kenyatta is facing a different kind of opposition as lawyers and civil society work in and outside courts to check what they are calling excesses of the Executive.
Joining the fray are retired chief justices Willy Mutunga and David Maraga, who have criticised the President for refusing to gazette six of the 41 nominees for appointment as judges.
Through a letter and an interview, Dr Mutunga and Mr Maraga delivered the most pointed criticism of the President for leaving out the six.
Since the March 2018 Handshake, President Kenyatta has enjoyed a largely calm period after opposition party ODM, and its affiliates in the National Super Alliance (Nasa) all crossed to the government side.
Deputy President William Ruto and his allies have also become the voice of opposition, though they avoid taking on the President directly, instead preferring to target Mr Raila Odinga.
But for Prof Peter Kagwanja, who is the Chief Executive of the Africa Policy Institute, the various groupings that have been challenging government policies and decisions cannot be considered formidable, even though they have notched some significant wins in court.
“This so-called opposition is very diverse. We cannot talk about a united opposition. It is coming in many shades and colours. But at a political level, this is the most dangerous. It rallies around William Ruto. Ideologically, it rallies around those who think the BBI (Building Bridges Initiative) will mutilate the Constitution. Some of them have the support of donors, although in a very covert manner,” said Prof Kagwanja.
For this emerging opposition to President Kenyatta’s administration, the biggest win so far has of course been the High Court decision that put a stop to the BBI referendum push.
With ODM and its Nasa affiliates working with President Kenyatta to amend the constitution, the task of defending the 2010 Constitution has fallen on civil society. They challenged the BBI and won the case which stopped, at least for now, the planned referendum.
An appeal is pending before the Court of Appeal but significant damage was done at the High Court which declared the process that produced the Constitution of Kenya (Amendment) Bill, 2020 “unconstitutional, null and void.”
Among the civil society activists who filed cases against the BBI were Dr David Ndii, Wanjiru Gikonyo, Ikal Angelei and Jerotich Seii through Linda Katiba, Kituo cha Sheria, Muslims for Human Rights and activist Okiya Omtatah.
New opposition
In the new list of opposition is the Law Society of Kenya (LSK), which has scored a number of significant wins in court against the government lately, though the government has ignored many of the orders. Some of the wins include the Thursday High Court decision annulling President Kenyatta’s Executive Order Number 1 of 2020 On the Organisation of Government. It also got orders to have the Kenya Meat Commission revert to the Ministry of Agriculture from the Kenya Defence Forces.
“We have an overbearing Executive that finds the Constitution and the rule of law to be an inconvenience. We have a Parliament that has been emasculated and compromised. We have a Judiciary that is weakened. And we have an opposition that has been purchased,” said LSK president Nelson Havi. As such, he says, LSK has stepped in to fill the void left by ODM and its Nasa affiliates.
“Essentially, we are in an assimilated one-party state. As it was during the 1980s and 90s when the same scenario played out, the organisation that spoke for the people was the Law Society,” added Mr Havi.
ODM Secretary-General Edwin Sifuna said the party, which for a long time had called out the Jubilee administration for its excesses despite opposition from some quarters, has actively played its duty.
“Anybody blaming ODM for the current state of affairs must tell us whether the Jubilee government only started disobeying court orders or violating the constitution after the Handshake. It is lazy for people, and especially an arm of government, to point fingers at a political party for failure to tame a President when they have greater legal and constitutional tools to do so,” said Mr Sifuna. The party, he added, has adopted a new and much more effective strategy in fighting for a better Kenya, something that many of its critics have failed to comprehend.
“Noise as a tactic is overrated. Despite all the noise we made on the SGR, Eurobond, NYS, etc, Jubilee went ahead with those programmes. So if we change tack, people shouldn’t say we died. Isn’t it the definition of insanity to keep doing things the same way and expect different results?” he posed.
Meanwhile, after the criticism by Dr Mutunga and Mr Maraga, the President’s allies are coming to his defence.
Nyeri Town MP Ngunjiri Wambugu termed the criticisms by Dr Mutunga and Mr Maraga “laughable”. “The President is elected by Kenyans to be head of state, head of government and commander-in-chief of the Kenya Defence Forces. The Judiciary is one arm out of three. The President’s role cannot be to rubberstamp what the Judiciary decides. Just like he does with the legislative arm, the President can opt not to follow a decision taken by an arm of government, otherwise he would be failing in his role,” he said.
He added that suggestions to impeach the President were a pointer to the unrealistic expectations many had towards realising their personal hatred towards the President.
For Jubilee Secretary-General Raphael Tuju, the criticism generally, is because people are forgetting the explosive political situations the country has experienced in the past. BY DAILY NATION