A section of MPs are seeking to shield Parliament and other state officers from being bound by all court orders.
The Justice and Legal Affairs Committee of the National Assembly have rejected a proposed change to the constitution to make it expressly clear that all state officers must obey court orders.
The National Dialogue Committee had recommended that the constitution be amended in Article 75 to make the provision.
The Constitution of Kenya (Amendment) Bill, 2023, which was a product of Nadco, also sought to empower the courts to impose sanctions on any officer who fails to obey a court order.
But in its report to members, the House team chaired by Tharaka MP George Murugara has held that the proposed amendment is not tenable.
“The committee observed that the proposal contradicts the doctrine of separation of powers as envisaged by the committee of experts on constitutional review when drafting the 2010 constitution,” the report reads.
The proposal would interfere with the independence of the three arms of government, the committee argues.
“Furthermore, willful disobedience of court orders is already provided for in Section 4 of the Contempt of Court Ac, Cap 8F,” the report reads.
MPs in JLAC include Farah Maalim (Dadaab), Edward Muriu (Gatanga), TJ Kajwang (Ruaraka) and Kirinyaga Woman Rep Njeri Maina.
Others are Junet Mohamed (Suna East), John Kaguchia (Mukurweini), Otiende Amollo (Rarieda), Stephen Mogaka (West Mugirango) and South Mugirango’s Silvanus Osoro. Aden Daud (Wajir East), Muchira Mwangi (Ol Jorok), Siyad Udgoon (Garissa WR) and John Makali (Kanduyi) also make the team.
However, Wajir East MP Aden Daud disagreed with the committee and issued a minority report suggesting otherwise.
Daud supported the proposal to compel state officers to obey court orders or face sanctions.
“The Nadco proposal seeks to ensure that state officers comply with court orders,” the first-term MP said.
Parliament has had run-ins with the Judiciary over injunctions, with the most recent being an attempt to stop the Senate from hearing the impeachment of Kericho Governor Eric Mutai.
Senate Speaker Amason Kingi, citing separation of powers, ruled that the courts could not issue injunctions against Parliament.
Another recent incident saw the courts deal a blow to the proponents of the impeachment of Rigathi Gachagua as deputy president. Whereas the process was designed to end on October 21, the courts have thrown the same in disarray following suits challenging the move.
Judges have for ages complained about the Executive disobeying court orders and the Kenya Kwanza administration has had its tussles with the legal arm.
In January, President William Ruto was locked in a row with the Judiciary and threatened to ignore court orders that he believed hampered his flagship projects.
At that time, the President claimed there were unnamed judges working in cahoots with the opposition to delay key government projects.
“It is not possible that we respect the Judiciary while a few individuals who are beneficiaries of corruption are using corrupt judicial officials to block our development projects,” Ruto had said.
Among projects which have been the subject of court duels included the Housing fund and universal healthcare initiatives.
While the projects were designed to take off at the onset of the Kenya Kwanza reign, they were delayed by the orders.
The rollout of digital identification cards was also delayed by the courts on a suit that was grounded on inadequate public participation. Ruto government’s - intent to sell state parastatals to boost their productivity and efficiency - was also challenged successfully at the courts.
The administration also suffered a setback on the Finance Bill 2023, but has since appealed the ruling which would have seen the taxes reversed.
The complaints by the Judiciary were also raised during the reign of the Jubilee Party.
In June 2014, then Chief Justice Willy Mutunga vented publicly about the violation of court orders by the Executive, whom he accused of stifling land reforms, cited as the reason it had tiffs with the Judiciary.
The government then staged a war against judges and even pushed to disband the Judicial Service Commission.
Mutunga’s successor, David Maraga’s experience was no different, especially after the Supreme Court nullified the 2017 presidential election