Maraga saga linked to succession wars

A petition was recently filed at the Judicial Service Commission seeking to kick Chief Justice David Maraga out of office. Instructively, the head of the Judiciary has only six months to hit 70 years, the mandatory retirement age for judges.

It is not the first time Mr Maraga is facing accusations of abuse of office.

However, the timing of the latest broadside gives Kenyans a sneak-peek into the intricate and dirty succession wars at the Judiciary.

There have been claims that Mr Maraga, who is also the President of the Supreme Court, might opt to retire as early as October to pave way for the recruitment of his successor.

His predecessor, Dr Willy Mutunga, retired a year earlier “to give the country sufficient time to recruit a new Chief Justice ahead of the August 2017 election”.

But as the clock ticks towards his January 21, 2021 retirement date, the CJ has become bolder; pouring out his frustrations in public over what he termed as undermining the rule of law and disobedience of court orders by President Kenyatta and the Executive.

Lawyers who spoke to the Nation said that the move points to succession politics at the Judiciary.

“The ground is being laid for his successor and the powers that be would want somebody they can control up there,” lawyer James Mwamu said on phone.

Article 167(1) of the Constitution sets the retirement age for judges at 70 but one can opt to retire at 65 years.

The Monday public address was not the first time Justice Maraga directed his anger at the Executive.

Last year, in a televised address to the nation from the Supreme Court premises, Mr Maraga alleged a secret plot by the Executive to remove him from office.

He laid bare the frustrations his office and the entire Judiciary had been enduring at the hands of the Executive led by President Kenyatta over budget cuts. The problem was soon solved after part of the Judiciary’s budget was restore.

And on Monday, the CJ accused the Executive of disobeying court orders, especially after failing to formally appoint 41 judges as recommended by the Judicial Service Commission (JSC) last August.

Mr Mwamu said that the Judiciary was fending for itself because of lack of an opposition and the muzzling of Parliament.

Mr Adrian Kamotho, another lawyer, said that plans were afoot to undermine the Judiciary and Mr Maraga’s leadership.

Swear in judges

“It has gotten to a point where it appears to be deliberate sabotage,” Mr Kamotho said, adding that the refusal to appoint judges even after court orders were issued smacks of deliberate mischief.

Justice Maraga is also chairperson of JSC.

He is deputised by Ms Mercy Deche, who represents the Law Society of Kenya, together with Macharia Njeru.

Other commissioners are Philomena Mwilu, Justice Mohammed Warsame (Court of Appeal) and Justice David Majanja (High Court). Others are Attorney-General Kihara, Mr Patrick Gichohi (Public Service Commission), Mr Felix Koskei and Prof Olive Mugenda (public representative).

Justice Maraga sat on the bench that voided the 2017 presidential election. Soon after the nullification, President Kenyatta promised to “revisit” the matter.

The Supreme Court has a vacancy of one judge after Justice J.B. Ojwang’ retired in February.

The Constitution stipulates that the Supreme Court should compose of five judges to be “properly constituted”.

The Court of Appeal has only 15 judges and was forced in January to recall judges who had been posted to Kisumu, Nyeri and Malindi.

The matter was made worse by President Kenyatta’s refusal to formally appoint 41 judges as recommended by JSC.

Defending the President, Attorney-General Kihara Kariuki said the list could not be approved because some judges “had integrity issues”.

But the JSC replied that any rejection of persons recommended for appointment negates and subverts the independence of the Judiciary.

JSC said the President’s role in the appointment and promotion of judges is purely facilitative.

“The constitutional structure and design was intended to insulate the process from interference by an organ of the State and the President’s role is purely facilitative,” JSC said.

The commission also defended the affected judges saying the National Intelligence Service did not table any claims of wrongdoing against them, adding that they were also not given an opportunity to defend themselves.

On the other hand the court ruled that the appointment of judges was not subject to review, reconsideration or second-guessing by the President.

It gave the President 14 days to swear the judges in.

Mr Maraga said the Executive’s disregard of court orders did not bode well for Kenya’s democracy and was potentially a recipe for anarchy.

However, the attorney-general   accused the CJ of setting the tone for judges and magistrates to rule on matters that would end up before courts for determination. “As a judge of the Supreme Court, the CJ is also revealing his disposition and prejudices over certain constitutional and legal issues that may end up before the Supreme Court for determination,” he said, adding that Mr Maraga did not disclose the source of his facts.

He defended the Executive saying it was committed to implementing court orders, to the extent lawfully practicable, save for instances of appropriate stay orders and pending appeals.

“The statements demonstrates that the honourable Chief Justice has failed to cultivate the spirit of constructive consultation,” the AG said.

“Such respect and deference is seriously undermined when the honourable Chief Justice engages in frequent vitriolic attacks on the President and the Executive, especially where the attacks are based on misrepresentations, distortions and half-truths all lumped together,” Mr Kariuki said.

“The subject statements demonstrate that the honourable Chief Justice has failed to cultivate the spirit of constructive consultation and has instead resorted to grandstanding and populist brinkmanship, with the Executive as his bogeyman.”