Fears of a constitutional crisis are building up in Kenya following President Uhuru Kenyatta unilateral and unconstitutional decision to summon and instruct the President of the Appeals Court to appoint a favourable bench in high profile case involving the Independent Electoral and Boundaries Commission.
In a move that clearly undermines the doctrine of separation of powers, Uhuru yesterday allegdly summoned Justice Kihara Kariuki (name betrays him?), to a private meeting and ordered the appointment of a favourable bench to influence the outcome of the appeal by IEBC in a case in which the High Court had ruled that presidential results announced by Returning Officers in the constituency shall be final.
Justice Kihara Kariuki received a direct phone call from the president warning him of dire consequences if the appeal by the IEBC was thrown out by a randomly selected appellate bench.
In the meantime, Chief Justice David Maraga has been sued by activist Okiya Omtatah who has claimed the CJ has taken on the role of constituting permanent appeal court benches to hear cases, and in the process violating the constitution by unlawfully assuming powers he doesn’t have.
Like many Kenyans, Okiya fears the CJ is already in collusion with the executive branch and real risk of setting up politically inspired benches exist. Such benches, ahead of the general elections, spell doom as they will ensure specific cases are assigned to them for predetermined rulings.
The powers to constitute appeal benches is constitutionally vested in the President of the Court of Appeal and therefore Justice Kariuki’s meeting with President Uhuru, amidst a suit involving the CJ on the same subject, has totally compromised the independence of the judiciary ahead of the highly anticipated general elections which is seen likely to end in a supreme court petition.
NASA opposition leaders have vowed to lead a national boycott the general elections should the Appeal Court restore powers to IEBC to alter results announced by Returning Officers at the constituencies.
Last week High Court judges Aggrey Muchelule, Weldon Korir and Enoch Chacha Mwita agreed with the applicants — UN special rapporteur Maina Kiai, human rights activists Khelef Khalifa and Tirop Kitur — that announcing results at the 290 constituencies reduced the possibility of them being altered at the national tallying centre.