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Deputy President Rigathi Gachagua has walked back on his threats to personally file a petition for the removal of Justice Esther Maina from office as the Executive appeared to chicken out of its earlier resolve to weed out what they claimed to be corrupt judges.

Through a press statement by the head of Deputy Presidential Press Service Njeri Rugene, Gachagua said he will not be filing a petition against Justice Maina of the Anti-Corruption Court with pundits now saying the government did not have evidence against any judge over corruption but was only out to bully them.

Instead, Gachagua said he would give the anticipated dialogue between the Executive spearheaded by President William Ruto and the Judiciary under Chief Justice Martha Koome, a chance.

This was a major about-turn by the DP who had vowed to take the raging war between the Executive and the Judiciary to the doorsteps of judges who the Kenya Kwanza leadership accuses of sabotaging their agenda.

Some Kenya Kwanza insiders were quick to point out that Gachagua move was aimed at opening the window for a retreat by the Executive with a view emerging that it could have ended up putting an egg on Ruto’s face as well as rallied ordinary Kenyans in defence of the Judiciary with considerable political consequences to the administration.

Embrace dialogue

A  high profile source intimate with the decision indicated that there was a view that a petition by the Deputy President could have handed his enemies a potent weapon with which to dig up mud on him and raise questions around circumstances surrounding the collapse of his fraud cases after he assumed high office.

“Deputy President Rigathi Gachagua notes the current national discourse on judicial transparency and application of Article 10 of the Constitution of Kenya on the conduct of Judges and other Judicial Officers. In this regard, the Deputy President will not proceed with the matter of the petition, for now,” the statement read in part.

Gachagua, who had spoken in Elgeyo Marakwet county yesterday, had on Sunday vowed to ensure the removal of Justice Maina, who he accused of declaring his Sh202 million fortune as proceeds of crime without giving him a chance to defend himself.

Gachagua had then promised to file the petition through the Judicial Service Commission (JSC) yesterday, through which he was to expose Justice Maina’s alleged misconduct and corruption.

“On Thursday, this coming week at 2.15 pm, I will personally present a petition before Chief Justice Martha Koome against Justice Esther Maina for her removal from the Judiciary for misconduct and corruption,”he  stated.

But yesterday, Ms Rugene said that Gachagua “Welcomes the statement by Chief Justice Martha Koome inviting dialogue on the critical issue of accountability of the Judiciary which the President has embraced.”

Credible evidence

The DP continued to urge all Kenyans to support the dialogue process.

According to the outgoing Law Society of Kenya (LSK) President Eric Theuri, Gachagua’s retreat was a clear indication that the Executive’s main intention was to intimidate, harass and ridicule judges with the main aim of undermining their independence. “The statement is ridiculous and a case of tragic comedy given the fact that the Deputy President had publicly named and shamed Justice Maina. If he indeed had credible evidence against the judge, he should present it to the JSC for investigations and subsequent determination,” Theuri told the People Daily.

The outgoing LSK President cast aspersions on the kind of dialogue envisaged on the alleged corrupt judges.

“What would form the basis of the dialogue….would they ask the corrupt judges to step aside or would they simply tell those corrupt to stop their ways? The attacks have only been aimed at bullying the judiciary into making rulings favourable to the Executive,” said Theuri.

Political analyst Javan Bigambo says Gachagua’s decision to chicken out at the last minute is questionable and raises heavy questions over the seriousness of the earlier declarations by the President that they were in possession of evidence incriminating judges.

“But above all, the Executive is trying to get itself out of the debate after the opposition twisted it to depict it as a war between the Judiciary and the Executive. President Ruto does not want to look like he is fighting the Judiciary and therefore, wants an exit strategy,” Bigambo said.

Apart from President Ruto’s administration trying to get out of the trap of being seen to fight the independence of Judiciary, sources say the move has also seen sharp divisions within his government with some of his close allies said to be opposed to the onslaught.

While a section of his allies, particularly those oscillating towards Gachagua have been agitating for the removal of certain judges,  a section of  leaders in the administration led by Prime Cabinet Secretary Musalia Mudavadi and  Interior CS Kithure Kindiki are said to have advised against the move.

 “If you have been watching the President keenly, he has only been talking about some individuals moving to court to stop the affordable housing project when the issue at hand has been the housing levy. The President has been crafty on the issue and only playing politics,” said a source. The source also revealed that Gachgua may have at first thought that by declaring to lead from the front with his evidence against Justice Maina, other individuals in government and members of the public would follow suit, but he found himself a lonely figure in the end.

“He goofed in his political strategy to volunteer to file the petition which many Kenyans saw as a revenge against a judge who was only doing her job,” says Bigambo.

For the last two weeks, President Ruto has been on the Judiciary’s case, accusing the Judiciary of sabotaging the Executive arm’s development agenda.

“I will deal with corruption in our courts. Personally, I won’t go giving bribes in court for my projects to sail through. I will not give in to tricks of cunning people who are buying lawyers and judges,” Ruto said in Nyandarua last week.

Staged protests

The President has made similar remarks during other events before and after visiting Nyandarua citing court cases that have seen injunctions imposed on the housing levy and reforms in the state’s health insurance scheme. The sentiments attracted the attention of LSK who staged protests in Nairobi. They were joined by Wiper Party Leader Kalonzo Musyoka, a member of the opposition coalition.

Chief Justice Martha Koome weighed in telling the President to table facts against the alleged corrupt judicial officers through the JSC.

Koome, however, took a different turn saying that the JSC was open to hold dialogue with the President.

“We will be looking out for that dialogue with the President. We have written to him and I believe that the President is going to give us an appointment,” she said.

Although these remarks were not taken well by the LSK and the opposition, President Ruto said that he too was opposed to the dialogue process. “I want to tell the Chief Justice that I am ready for a meeting with the Judiciary, Executive, and Legislature. The Executive, led by me, the leadership of the Judiciary led by the Chief Justice and the leadership of the Legislature led by our Speakers,” Ruto said at Tinderet College in Nandi County.

It is in this view that Gachagua changed his heart even as the opposition leader Raila Odinga warned Koome on her decision.

“CJ Martha Koome says she wants to dialogue with Ruto. That will mark the start of compromising the independence of our Judiciary. There is no need for it. The law says that if you disagree with a court decision you appeal,” said Raila.

Ruto however in a quick rejoinder told Raila off. Gachagua’s beef with the judge, he revealed, originated from his woes under President Uhuru Kenyatta’s regime when his Sh200 million fortune was frozen by the court.