Bernice Mbugua and Bernard Gitau

 “You are violating the Constitution, encouraging disregard for the rule law by disobeying court orders and frustrating fair administration of justice.” 

This was Chief Justice David Kenani Maraga’s message to President Uhuru Kenyatta yesterday, as the tiff between the two constitutional office holders continued to escalate.

Maraga, also the President of the Supreme Court, heaped blame, including an overwhelming backlog of cases, at Uhuru’s doorstep. 

The Chief Justice said the higher courts had a backlog of nearly 37,000 cases, largely caused by shortage of judges. 

At the centre of the conflict is what Maraga described as refusal by the President to appoint 41 judges approved by the Judicial Service Commission (JSC) despite two court orders compelling him to do so.

“It is important to clearly and categorically state that this shortage of judges and the near paralysis of court operations has been caused by the President’s refusal to swear in the 41 judges recommended by the JSC in July 2019 to the Court of Appeal, the Environment and Lands Court and the Employment and Labour Relations Court,” he said.

Integrity issues

According to Maraga, the President had no role in the appointment of judges, his duty only being to formalise the process.

In his decision, which was revealed in court, Uhuru said some of the nominees had pending integrity issues. 

Despite the courts ordering that the appointments be effected, Attorney General Kihara Kariuki, who is a member of the JSC that approved the nominees, gave a notice of appeal which he has not executed, effectively creating a legal stalemate.

A clearly upset Maraga, who revealed that he had made several attempts to meet Uhuru without success, was candid with the President at his press conference, saying he was ventilating Wanjiku’s woes.

“It is for this reason that I must remind you that you swore to uphold and defend the Constitution and the laws of Kenya.

The Constitution, as the two multi-judge cases held, requires you to appoint judges recommended to you by the JSC which you have refused to do,” said Maraga, who was updating the country on the status of the case-load in the courts.

“The laws of this country include valid court orders. It, therefore, behoves you to appoint the 41 persons recommended for appointment by the JSC and ordered by the court without any further delay,” said Maraga.

Early exit

He said that if the allegations on the integrity of some of the nominees were true, they should not be serving as judges and challenged their accusers to provide relevant evidence.

The Chief Justice is racing against time to secure a legacy ahead of his retirement next year.

Maraga is expected to retire in January 2021 upon attaining 70 years, but those close to him say he is contemplating an early exit, possibly by October, like his predecessor Dr Willy Mutunga. Maraga was born on January 12, 1951. 

Throughout his tenure, he has staked securing an independent Judiciary, instilling a culture of the rule of law, constitutionalism and reduction of the case-load by allowing access to justice through construction of courts across the country.

The CJ has, however, accused the Executive of interfering with court operations and under-funding the Judiciary.

According to the CJ, the Executive had developed a “pattern of disobeying court orders” and attempts to address the issues such us long-standing compensation claims by accident victims with the responsible officers are met with “a contemptuous Uta Do?  attitude”.

He cited the recent eviction of hundreds of families from Kariobangi, Nairobi despite a court order.

Maraga accused the government of failing to pay accident victims, some of them old and sickly.

“How can we expect God to bless our nation when we are so callous to the most desperate in our society?” he posed during the presser on the steps of the Supreme Court building.

According to the Supreme Court boss, he had unsuccessfully sought an appointment with the President to discuss the issues, to no avail.

“The President has left me no option but to raise the matter through this public statement. It will be dereliction of my duty if I do not raise Wanjiku’s agonies in my domain. At least let her know that I share in her frustrations,” said the CJ.

He warned that by disobeying court orders, the President was setting a dangerous example to the rest of the citizenry.

“The President’s disregard of court orders does not bode well for our constitutional democracy and is potentially a recipe for anarchy. Beside the court orders, I have challenged the Executive to table before the JSC the alleged information of lack of integrity it has on some of the nominees,” said the CJ.

He revealed that the government owed up to Sh1billion claims despite court decrees. He noted that many of those decrees arose from personal injury claims by victims of road accidents caused by government vehicles and in some of the cases, the victims had suffered paraplegic injuries.

The CJ urged the President to demonstrate faith and respect for the rule of law by complying with the two court orders on the appointment of judges.

“In doing so, you will also alleviate much suffering for Kenyans who are seeking justice in our courts. In the same vein, I request your Excellency to instruct the Attorney General to take stock of all the court decrees and orders issued against the government and to immediately begin a process of satisfying them,” he said.

Maraga’s statement comes barely a week after another spat with the President following an Executive Order that he interpreted as an attempt by State House to assign the Judiciary duties despite being an independent arm of government.

The Executive Order 1 of 2020 signed last Wednesday re-ignited the rivalry between the Executive and the Judiciary, with Maraga accusing the President of interfering with his turf.

“The order cannot “restructure” or “assign functions” to other co-equal and co-substantial arms of government and independent commissions,” Maraga said.

He said the Judiciary was neither a ministry nor a government department to be subjected to an Executive Order.

LSK stand

But Attorney General Kariuki rejected the CJ’s assertion of interference noting that the President had issued similar orders before. 

Yesterday, the Law Society of Kenya (LSK) backed Maraga’s allegations against the Executive and asked the Senate and the National Assembly to institute impeachment proceedings against the President for allegedly violating the constitution.

“The two houses are mandated to impeach the President hence Kenyans are awaiting to see their next course of action,” said LSK President Nelson Havi.

Havi accused the Executive of systematically weakening the Judiciary and the Legislature. 

“It has been the order of the day for the government to disobey court orders claiming they are barring its operations,” he said.

Havi also accused the President of punishing the Judiciary for canceling his 2017 election victory.