CJ on the spot over judicial independence, foreign trips

Chief Justice David Maraga is coming under intense criticism, especially from within his own backyard with accusations of interfering with judicial independence of judges and magistrates.

He also seems to have upset many judiciary officials when he recently issued travel guidelines for all judges and other judicial officers to seek approval from him to attend conferences and seminars, banning air travel by magistrates at the expense of government and cancelling some planned training opportunities.

In hushed tones in their chambers and with friends outside, murmurs of discomfort with Justice Maraga have been building, with some even raising concern over his own frequent foreign travels.

The Chief Justice was last week in Canada shortly after returning from the US where he attended the annual Kenya diaspora conference in Dallas, Texas.

DISTURBING

But the accusations of interfering with the independence of judges and magistrates, more so after he called for the file of a petition that had been filed by activist Okiya Omtatah before the Employment and Labour Relations Court to suspend the circular that the Head of Public Service Joseph Kinyua had issued sending on forced leave heads of procurement and accounting units in government, have become the most adverse even if at this point unsubstantiated.

Mr Omtatah has protested at the CJ’s “disturbing and totally unacceptable” action of allegedly playing a part in Justice Onesmus Makau’s decision to reverse the orders he had earlier issued suspending the circular.

“It is disturbing and totally unacceptable that you (the CJ), the very person who should embody the independence of the Judiciary, found it in your eminent person to stoop so low and, be the very person who undermines the independence of the Judiciary. Under no circumstances are you entitled to call for files from individual judges. Such imperial powers which were available under the repealed constitution were terminated when the people of Kenya rejected them at the national referendum where they ratified the new Constitution,” Mr Omtatah said.

INTIMIDATING

But the Chief Justice has termed the accusations against him as lacking in merit. “You know that the Chief Justice has taken the oath of office to protect the Constitution. Moreover, there is a principle in law that one should not interfere with the judicial independence of judicial officers whatever the level,” Chief of Staff in the office of the Chief Justice Dr Conrad Bosire said.

And Justice Maraga seems to be having the support of the Law Society of Kenya (LSK). LSK president Allen Gichuhi said those accusing the CJ of interference or dancing to the tune of the Executive should provide clear evidence.

“The only way to accuse the CJ is where there is incontrovertible evidence to indicate that he has interfered. There are instances in the past where chief justices have called for certain files and it is within the powers of the Chief Justice to do so. The Chief Justice can also issue directions and there is nothing unconstitutional or illegal about that. What we are concerned about as the legal fraternity are baseless attacks on the Judiciary through social media with the aim of intimidating the independence of the Judiciary,” said Mr Gichuhi.

CONFERENCES

Besides, the CJ’s memo setting the travel and training guidelines at the Judiciary has left some insiders frustrated. Our sources at the Judiciary Training Institute complained of attempts by the office of the Chief Justice to micromanage their affairs, including their training schedules. For instance, a needs assessment training was cancelled at the last minute. The training needs assessment had been included in the Sustaining Judiciary Transformation operational plan of August 2017.

In response, Dr Bosire said the memo was an outcome of deliberations between the CJ and the association of judges and magistrates.

“I know that the CJ had engaged the magistrates on the issue of travel. But substantive responses would have to come from the CJ himself on what they discussed because I am not privy to the details,” he said.

The ban on air travel for magistrates on the government’s account as well as CJ Maraga’s demand that judicial officers must seek his approval to attend seminars and conferences is being seen by some as discriminatory and limiting.

EXECUTIVE

Meanwhile, the decision by the courts to initially deny bail for suspects in the National Youth Service scandal continues to draw mixed reactions.

For some critics, the denial of bail to suspects charged with the loss of funds at NYS shows a weakness on the part of the Judiciary which is eager to please the Executive.

The suspects had lost their application for bail before Chief Magistrate Douglas Ogoti, but High Court judge Hedwig Ong’udi later granted their application.

Prior to the bail applications, CJ Maraga had made remarks during the National Prayer Breakfast at Safari Park hotel on May 29 to the effect that President Uhuru Kenyatta could count on the Judiciary in the war against corruption.

“We know you have declared war on corruption. You can count on the Judiciary. We are together in fighting corruption because that is good for our nation and that is the only way God can bless all of us if we mind to preserve the national wealth,” he said. Some have interpreted this to mean a pledge by the Chief Justice that the Judiciary will do the Executive’s bidding.

MEDICAL COVER

In frustration with CJ Maraga, insiders also point to the manner the leadership of the Judiciary handled the recent withdrawal of medical cover for judiciary staff.

Medical cover for judges and other judicial officers was recently withdrawn due to insufficient funds as the National Treasury had not released the cash.

Judiciary Human Resources Acting Director L. A. Onyango in a memo to staff, dated June 7, said the scheme stood suspended from June 7.

For some within the Judiciary, that thousands of staff could go without medical cover and without any public complaint except the leaked memo raises questions on the way the CJ is running the Judiciary.