Uhuru was to pick judges next week before Maraga attack

By Reporter

Chief Justice David Maraga was unaware President Uhuru Kenyatta was planning to appoint new judges as required before he launched a scathing attack on the head of state.

He accused Kenyatta on Monday of disobeying court orders and refusing for six months to appoint 41 judges proposed to him by the Judicial Service Commission.

CJ Maraga told a media briefing his efforts to get an audience with the President over the appointments had failed.

But some members of the Judicial Service Commission said Maraga and the head of state had met for nearly an hour in February, days after Maraga launched another verbal attack on the President.

During the meeting in State House, the two agreed on a number of issues, including judicial appointments, the JSC members said.

The President is reported to have agreed to appoint judges who did not have integrity issues and to address budget issues raised by Maraga at that time.

“The appointments were to be made next week. We are surprised by the statement by Maraga,” a senior appellate judge aware of the plans said.

Some members of the JSC said they were not aware of the contents of Maraga’s statement.

“We did not know that he had planned to issue a statement,” one member said.

In what was perhaps a Kenyan first, Maraga took to the steps of the Supreme Court and read the riot act to the President, reminding him that he swore to defend and protect the Constitution.

Maraga claimed disregard for court orders had become a norm in the Executive and even attempts to compel accounting officers to act are always  rebuffed by the contemptuous “uta do” attitude.

At the heart of the latest falling-out is Uhuru’s failure to appoint 41 judges despite two court orders.

However, just last week, the CJ bitterly complained about an Executive order by the President in which he listed the Judicial Service Commission as a government department. The CJ is chairman of the commission.

“Unfortunately, this disregard for Court Orders by the President is part of the pattern by the Executive,” protested Maraga, citing the recent Kariobangi evictions as an example.

On Monday, the Law Society of Kenya weighed in, sided with Maraga and said it would initiate motions in the National Assembly and the Senate to impeach President Kenyatta.

LSK president Nelson Havi told journalists the President has blatantly disregarded court orders and violated the Constitution.

He said the LSK is well aware of a plan by the Executive to weaken and control the Judiciary. Uhuru had not appointed 41 desperately needed judges in six months, as required by law, he said.

Uhuru’s first run-in with the Judiciary was in 2017 when the Maraga-led Supreme Court nullified his presidential victory and ordered a fresh presidential election.

An angry Uhuru  promised robust vengeance saying the Kenyan judiciary has a problem which must be “fixed”. He also called the judges wakora, or crooks.

On Monday, the CJ deplored that Uhuru has been frustrating his efforts to have a one-on-one meeting with him to discuss the appointment of the 41 judges. 

“Your Excellency, you know I have respect for you as our President and I have told you that. You also know that I have for a long time now unsuccessfully sought an appointment to discuss this issue with you, leaving me with no option but to raise the matter through this public statement,” he said.

A frustrated Maraga said the court operations are currently near paralysis due the shortage of judges, which he said was caused by the President’s failure to appoint them.

He said the situation is so dire that if you file a land case in the Environment and Land Court at Milimani Nairobi today, the earliest your case will be heard is in 2022.

“This is because we have a total of 33 ELC judges in the county against a case load of 16,457 as at March 2020,” Maraga said.

The CJ further said the situation is worse at the Court of Appeal, which has only 5 judges serving the whole republic with a caseload of 7,315 in March.

“The situation is not any better at Employment and Labour Relations Court, which has only 12 judges throughout the Republic against a caseload of 13,197 as at March 31,” Maraga said.

The President had refused to swear in the 41 judges because he claimed to have information that some of them have integrity issues.

However, the court dismissed the argument by the State, ruling the President cannot change the list, review it or reject some names, he cannot cherry-pick from the list of nominees.

Maraga also took a jab at AG Kihara Kariuki, accusing him of always filing notices of appeals but not taking any further action.

“The AG as is now his practice filed Notices of Appeal but he has not done anything to prosecute the appeals from the two decisions of the court, neither has he obtained any stay of execution of the orders of the court,” he said.

The CJ said he has challenged the Executive to table before the JSC the alleged information of lack of integrity it has against some of the 41 nominees, however, no evidence was availed to the JSC both during tand after the interviewing process.

It was Maraga’s argument the State callously continued to disobey court orders issued against it with total disregard of the rule of law.

“It will be a 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,” Maraga said.

The CS also said the State should be at the forefront in upholding the rule of law, adding that the government cannot demand its citizens obey the law that it is itself disobeying with abandon.

He also cited the Kariobangi demolitions that were carried out despite a valid court order stopping the evictions.

The CS also raised concerns about the thousands of decrees issued against the state on behalf of victims, which could amount to Sh1 billion.

“The state has willfully also neglected to settle dozens of court decrees issued by various courts against the government; these court decrees amount to almost Sh1 billion by conservative estimates. Many of these decrees arise from personal injury claims by victims of road traffic accidents caused by government vehicles,” Maraga said.

He says in some cases, the victims have suffered paraplegic injuries yet, the government has failed to settle these decrees.

“How can we expect God to bless our nation when we are so callous to the most desperate in our society?” he asked.

This is not the first time Maraga has lashed out at the President in a public statement. Last year, he came out and deplored the budget cuts to the Judiciary, threatening not to attend State functions as he said he was being looked down upon.

Although the President said in 2017 he would revisit the Judiciary, he has said on several occasions since then that he is not punishing the Judiciary.