Kenyan President William Ruto’s sustained assault on the country’s judiciary has blown off the lid on the intrigues in the three arms of the government that is proving tricky for the executive to ride roughshod over them.

At stake is the trust of investors in the local judicial system, with experts warning the president’s tirades threaten foreign capital inflows, which have been on a steep decline in the past two years.

While the executive and legislature have taken turns to hurl salvos at the judiciary, the bench and bar aver that the two arms of government are infested with commercial interests that are driving the onslaught on the judiciary.

Consequently, judicial officers, lawyers and  politicians are opening up on what may have stirred the hornet’s nest as the president and his Deputy Rigathi Gachagua aimed tirades against the judiciary for since November. At issue, they say, members of the executive own substantial stakes in real estate, which is why they are driving the housing and health insurance agenda to serve their business interests.

From the president’s lawfare, there are fears that what criminal justice advocates view as executive roguery is a veiled rollback on the commercial and tax court that are equally unpopular amendments on the National Hospital Issuance Fund (NHIF) and the National Social Security Fund (NSSF), which has been in the firing line as the executive seeks to push through the contested housing tax that came into effect in January.

“When you want to kill a dog, you first give it a bad name,” says advocate of the high court Hassan Kulundu. “What we are being treated to is an attempt to paralyse the commercial court division of the High Cout by intimidating judges and obfuscation to push through controversial government programmes in which senior state officers have interests,” says Kulundu.

The lawyer says the “affordable” housing programme President Ruto has defied public sentiment to push through is a huge money project that is bigger than Nairobi Expressway, which is alleged to be privately owned by the rich and powerful from Kiambu county. Nairobi Expressway was cast as government project funded by taxpayers money.

However, it is the housing tax that has stoked public resentment of the executive, which has responded by savaging the judiciary as a den of corrupt officials who pander to the whims and fancies of opposition political party leadership. The three-judge bench that struck out the housing tax from the Finance Bill 2023 was made up Justice Lawrence Mugambi, Justice Christine Meoli and Justice David Majanja, who presided over the panel.

“An order of stay be is hereby issued staying the effect of this judgement issued today November 28, 2023, pending the filing of a formal application for the stay of conservatory orders in the Court of Appeal,” Justice Majanja ruled.

The ruling irritated the executive, with Ruto and Gachagua launching tirades – without proof – against the judiciary. Justice Majanja and Justice Esther Maina have come under unsavoury attacks, raising suspicions that the president is creating an excuse to staff the judiciary – particularly the commercial and taxes court – with his henchmen.

Since he came to power in 2022, Ruto has come under searing criticism for favouring his Kalenjin community in strategic public service appointments.

As the standoff between the judiciary and executive draws attention at home and abroad Tell is informed that the focus of the executive attacks is the commercial and tax division of the High Court that is home to both sticklers for justice and rule of law, and a bastion of gravy train racketeers.

Dr Otiende Amollo dismisses the commercial and tax court angle as a wild goose chase intended to hoodwink the public into believing the judiciary is rogue.

“It is just the executive that wants to control the judiciary. There are clear constitutionally prescribed mechanisms of ejecting a judge from the bench. An aggrieved party can petition the Judicial Service Commission or even use the office of the ombudsman against a judicial officer. What we are seeing is an executive onslaught on the judiciary to compromise its independence,” says Dr Amollo, a member of the Committee of Expert that drafted the 2010 constitution that has been hailed internationally as progressive, reformist and instrumental in separation of powers in the three arms of government – judiciary, legislature and executive.

Amollo, the MP for Rarieda, is concerned that Ruto is waging war against the judiciary to relegate it to his beck and call “as he has done with the legislature.”

Reached for comment on the perceived civil war in government, along serving judge laughed it off as “impertinent” the row between the president and Chief Justice Martha Koome, terming it an “occupational hazard” that cannot fundamentally alter the functions and principles upon which the judiciary is founded.

“It is about interests. The  judiciary has been under pressure to acquiesce in the whims of the executive. Both the opposition and the government have interests they are pushing. The onslaught on the judiciary has a long history and whenever it happens it comes down to the executive working hard to create loopholes in the administration of justice to entrench their interests,” says the judge, who spoke to Tell off-record.

An advocate the high court, Mr Wainaina Ndung’u shares the view, but goes further and links the president and deputy president to real estate interests where they have invested immensely and are reported to be keen on expanding their financial empires.

The advocate concurs with the judge that the judiciary has since 2010 been instrumental in foiling political schemes laden with extra-judicial  and unconstitutional agenda.

Ndung’u observes, “Do you remember how Uhuru used to viciously attack the judiciary, media, civil society and individuals who opposed his policies? Why was he doing so? (Because of) conflict of interests. Ruto is embroiled in a conflict of interest too. Why do you think he is so interested in housing levy and housing projects? It is personal investment! Remember it is not housing tax that is being used to build houses. It is private developers building houses on public land (no legal basis) to selling to private individuals. Housing tax is a risk insurance fund. If houses are not bought, private developers will be paid through housing tax. This same thing you will find in health etc. Ruto is in real estate investment.”

It is instructive to note that most of Ruto’s allies have a history of land-grabbing, financial fiddling and money laundering. Most of the cases have been dropped for “lack of evidence” since he came to power. Kulundu says the affordable housing scheme opens room for potential economic crimes suspects to sanitise their loot.

“On conflict of interest and commercial front, the state has been the biggest source of wealth. State power is abused to extract and amass wealth. Policies, laws and budgets are formulated and enacted to enable and facilitate this wealth extraction. Judiciary had played a critical role – especially – during Uhuru’s tenure and now within this short period of Ruto presidency in challenging some of the laws and policies being hurriedly passed to enable individuals in power to advance their personal financial and commercial investment benefits. This explains why the Executive and Parliament are unified in the attacking judiciary.  It is defending and advancing their mutual interests. They see the judiciary as a bottleneck; a hinderance to their economic and financial interests,” Ndung’u explained to Tell.

Since the promulgation of the current constitution in 2010, the judiciary has asserted its authority as a co-equal arm of state with retired chief justices, Dr Willy Mutunga and Mr David Maraga, proving unpliable by the executive and legislature. While it may tumble once in a while – like in the aftermath of presidential election petitions in 2013, 2017 and 2022 – it has become the true bastion of defending constitutionalism and rule of law, Ndung’u points out.

Of the three arms of government, the judiciary has refused to be complicit and an accomplice in undermining the sovereignty of the peoples. The lawyer says through popular strategic litigation Kenyans have relied on the judiciary to deter and tame political roguery, impunity and fiat of both parliament and executive as was demonstrated by three-judge bench presided over by justice Majanja that set aside disputed parts of the Finance Bill 2023-24.

During the tenures of Justice Mutunga and Justice Maraga, the judiciary challenged the exercise of executive power that on a number of occasions brought it at loggerheads with former President Uhuru Kenyatta and his deputy Ruto. It is a trend that started in the sunset years of the Kibaki administration. It has had a huge power counterbalance that the executive and parliament detested to a point where the life of Justice Philomena Mwilu was threatened. Both arms of government view the judiciary as cutting their monopoly of power.

The attack on the judiciary became more intriguing when Mr Gachagua and deputy Speaker of the National Assembly Gladys Boss Shollei mentioned specific judges of the High Court – Justice Esther Maina and Justice David Majanja – for allegedly flouting the law.

Gachagua was peeved that Justice Maina ordered Gachagua to forfeit Sh202 million in land dispute terming the money proceeds of corruption. The deputy president had in the past been questioned by investigators about some Ksh12 billion tracked to his bank accounts. He was controversially discharged of the two cases after he because deputy president in 2022, a position he is frequently accused to abusing.

Ndung’u explains that judicial decisions since the promulgation of the 2010 constitution have scattered political schemes. Politicians see the judiciary as a significant threat to their political plots. He gives Building Bridges Initiative as a case in point.

“Ruto knows this (the independence of the judiciary) very well. He experienced it during his tenure as deputy president. He knows any political move (and he will make several) will be under close scrutiny by Kenyans through the judiciary. Remember he has given some constitutional amendment proposals. He therefore has to undermine and delegitimise judiciary.

On January 15, Uasin Gishu Woman Representative Gladys Shollei accused Justice Majanja of undermining the housing programme. Initially Shollei had agreed to an interview with Tell, requesting: “Send me the list of questions so I can do written responses.” She did not respond when it was done.

Ndung’u is of the opinion that Ruto is using the judiciary as means to an end: investment in real estate and health and the taxes will be a risk insurance fund.

• A Tell report / By Juma Kwayera