Judge Says: Uhuru broke law

The Treasury has been spared further embarrassment after a judge dismissed a petition seeking to have it refund Sh368 billion to the Consolidated Fund, which is the Government’s main bank account.

But High Court judge Justice David Majanja was highly critical of Finance Minister Uhuru Kenyatta for breaching the Constitution through his selective application of its various articles.

The ruling also brings into focus Attorney General Prof Githu Muigai, who is the State’s chief legal advisor and the first respondent in the petition, with Uhuru listed as the second respondent.

Justice Majanja was explicit that Uhuru, who is also the Deputy Prime Minister, should have tabled an Appropriations Bill as required by Article 221 of the Constitution, before seeking Parliament’s consent to withdraw money from the Consolidated Fund to finance Government operations.

"Every failure to follow the letter of the Constitution harms the Constitution itself, breeds cynicism and encourages impunity particularly when such failure stems from a deliberate effort to undermine the Constitution," said Justice Majanja.

In contrast, he only had kind words for National Assembly Speaker Kenneth Marende.

Majanja said the Speaker displayed a healthy and welcome respect for the rule of law, and the principle of separation of powers, despite giving Uhuru a window to escape the wrath of Parliament on June 7 last year.

The last word

However, said Justice Majanja "the Judiciary has the last word in the event of dispute on the interpretation and application of the Constitution."

He noted: "... the Constitution has ushered in a new era, not of Parliamentary supremacy, but one of supremacy of the Constitution. The superintendents of the Constitution are the courts of law which recognise that each organ in its own sphere working in accordance with law not only strengthens the Constitution, but ensures that the aspirations of Kenyans are met."

The judge was clear that his decision to dismiss the petition was not a vindication of Uhuru’s actions, but said he was unable to grant the petitioners their wish, as this would endanger the process of implementing the Constitution given that six months had passed since the incident.

"Preparations should now be made to comply with the provisions of the Constitution in the next financial year," ruled Justice Majanja.

The Standard