The hesitant sentry: Unpacking Justice Mugambi’s injudicious judicial decision
by admin on | 2024-07-04 10:01:09
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On 27 June 2024, the Constitution of Kenya lost while the executive’s word won courtesy of a hands-off approach to determining constitutional disputes adopted by Justice Mugambi. Although in the past, I have argued that a court of law can no longer afford to ‘widdle its thumbs or wring its hand’ and overlook threats or constitutional violations, Justice Mugambi just did that. Whereas in the field of constitutional horticulture, the High Court occupies a special place in Kenya’s legal system, and its judges are expected to act as ‘horticulturists who guide the work of gardeners in a national garden’ as spelt out under Articles 23 and 165(3), Justice Mugambi dropped the guard.
Through an injudicious judicial decision, Justice Mugambi threw his hands in the air and granted the executive a blank cheque vide a vaguely crafted order. Simply, the ruling smacks of judicial surrender. This short piece briefly highlights my disappointments with the ruling.
Although our transformative Constitution demands the presence of vigilant judges or those referred to as bold spirits, the ruling reminds us that the Kenyan Judiciary is still occupied by timorous souls who can abdicate their solemn responsibility of being guardians of the Constitution when the seat is too hot.
Setting the scene: How did Kenyans find themselves in Justice Mugambi’s court?
The Government of Kenya has been enacting annual Finance Acts. These Acts aim to amend previous tax legislation to raise more taxes. In 2023, the Ruto-led regime, playing to the IMF tunes, introduced a Finance Bill which imposed heinous taxes on Kenyans. Kenyans led by the opposition went to the streets to oppose the bill. Despite the disapproval by Kenyans, the executive controlled National Assembly passed the bill. Fortunately, the Act was temporarily stopped by Justice Thande and later partially quashed by Justice Majanja’s led bench. In 2024, the Ruto-led regime remained defiant and introduced another terrible bill that proposed additional taxes, such as taxes on bread, motor vehicles and sanitary pads. Kenyans opposed this bill in its entirety during the public participation sessions. Despite this disapproval, the executive choir masters in the national assembly vowed to pass the bill, and indeed, passed it.
