Maraga: Judiciary shaken by verbal attacks during petitions

When he took the unusual decision on September 19 last year to tell off politicians who had been criticising the Judiciary over the handling of the August 8 presidential election petition, Chief Justice David Maraga was under no illusion of the kind of response he would get.

But somehow, he felt that he had to do it for the sake of the judges and their families.

SHAKEN

In the first one-on-one newspaper interview since the disputed August 8 General Election and October 26 repeat presidential election, Mr Maraga reflects on what the Judiciary officials and their families went through.

According to Mr Maraga, the verbal attacks left many of them shaken.

Soon after the Supreme Court made its determination on September 1, a livid President Uhuru Kenyatta called the Supreme Court judges wakora (frauds) for nullifying his re-election, declaring: “We shall revisit.”

Today, months after the tumultuous period, Mr Maraga says they have moved on.

“Disagreements between arms of government are normal, even within developed democracies. But this does not necessarily hamper engagements and dialogue,” he said.

And amidst the current political standoff between Nasa and Jubilee, which has deeply divided the country, Mr Maraga says the Judiciary will observe from the sidelines and only get involved when a case is filed.

ACHIEVEMENTS

The Chief Justice also speaks of his achievements since he took over from Dr Willy Mutunga in October 2016 and how his life has changed since he took up the position.

1. Your predecessor Dr Willy Mutunga had, as his blueprint, the Judiciary Transformation Framework (JTF) while you have Sustaining Judiciary Transformation (SJT). What is the difference in terms of goals between these two blueprints?

There is really not much difference. It is a continuation of the same. The difference is on the focus. While JTF focused on institutional capacity building and laid the foundation for the reforms, SJT builds on that foundation but emphasises service delivery. Of course Dr Mutunga laid a very good foundation but you cannot continue having a foundation all the time. Once you have put the foundation in place you need to begin service delivery. Mine focuses on service delivery which we want to be centred in court stations and we are calling upon the court users to look at it and ask us a few things here and there. Bottom line, however, is that both blueprints focus on making the Judiciary a modern, progressive institution that is responsive to the needs of all Kenyans.

2. If you were to single out two key achievements since your appointment, what would they be?

As you know, in my position as the Chief Justice, I am also the president of the Supreme Court. I came into office in a political year and managed to prepare the Judiciary to handle a hoard of political cases within the set timelines. This ranged from resolving political party disputes to hearing election petitions. We successfully resolved nomination party disputes as well as the Presidential Petitions. We did this successfully because of the intense preparation. We are now in the process of determining other election petitions.

Secondly, we have managed to reduce the number of old cases significantly. For example, the number of cases in the High Court older than five years dropped from 48,173 in 2016 to 35,836 as at November last year. We intend to reduce these to zero by December this year.

I know you asked me to name just two successes but let me also mention the preparation and socialisation of my blueprint, which defines what my vision for the Judiciary is and against which my tenure after five years will be judged.

We have managed to install WiFi in most of our courts as part of a robust initiative that will see us completely digitise our courtroom and registry operations. Add to this the various reform initiatives such what we are doing with the Criminal Justice sector and you will see it has been a busy year indeed.

3. You came in at a time when the Supreme Court was deeply divided, a situation that had been exacerbated by the case on retirement age for judges. Can you confidently say these divisions have now been bridged?

That was true but I think the issue is now settled. The courts have pronounced themselves — both the High Court and the Court of Appeal — on the retirement age. Anybody trying to bring it up now, in my view, really is a waste of effort. There being no appeal from the Court of Appeal decision, you know the law remains. So that is settled. There is no argument over that.

4. The Judiciary is still dogged with myriad corruption claims. Critics think the Sharad Rao-led vetting did not yield much. What are you doing to ensure corruption is nipped in the bud?

Indeed the fight against corruption both within the Judiciary and in other facets of public life is a big concern for us. We very well understand that we cannot be immune to corruption as a Judiciary as long as it is an acceptable currency out there.

For a start, the Judicial Service Commission has been fast-tracking discipline cases against our Judicial and other officers. Those found to be involved in corruption are summarily dismissed.

The integrity campaign, which also involves the strengthening of the Judiciary Ombudsman, is a key pillar in the SJT blueprint.

Our concern regarding corruption goes beyond the Judiciary. We have in fact invited other arms of Government to join hands with us to tame this vice if not kick it out of Kenya altogether. Institutionally, we have fully operationalised the anti-corruption court and issued practice directions to help in the fight.

5. Within a short period between August and November, and just a year after you assumed office of the Chief Justice and president of the Supreme Court, you have presided over two highly contested presidential election petitions. How did you handle the pressure and public interest that came with the petitions?

The oath that I took was to serve Kenyans and to defend the Constitution and the rule of law. Everything else is secondary. And I did not expect any less in terms of pressure and public interest. We successfully managed to resolve the two presidential petitions by ignoring the debate out there and focusing on the issues placed before us and the law applicable in those petitions.

6. Was there any political pressure on you, the judges, during the petitions and before you made your decisions?

None whatsoever. If there was to be any political pressure it would have been more in the first decision yet we were able to decide the case the way we did. There was no political pressure at all. As I told you, if you take time and read through the decisions of the two petitions, you will see why we decided each the way we decided. Some people have said some things about the second petition (after the October 26 election). That ‘why did you decide this way and not that way?’ The two petitions were completely different. Not many people realise this. The scenarios had changed. The contestants, some of them, had withdrawn and so the scenario was completely different. The facts that were placed before us, in our view, did not merit overturning the election.

7. After the Supreme Court determination of the petition following the August 8 presidential election, certain words were uttered by some leaders that bordered on threats and insults, including calling you and your colleagues who were in the majority as wakora (frauds). What was your take on this kind of reaction? How did these utterances affect you personally, your family and colleagues in the Supreme Court?

Those attacks were unfair and unfortunate as they endangered the lives of judges and other staff. And remember, the attacks were not just on the Supreme Court judges — High Court judges were equally attacked. I hope all our leaders appreciate that it is possible, and definitely desirable, to disagree respectfully. Yes, the attacks affected me and my family. But I took them in my stride as the utterances were made in the heat of the moment and I urged my family to view them in the same manner.

8. Further to question above, did you at any point, either during the hearing of the petitions or after the judgments were delivered fear for your life or that of your family given the reactions? Did any judge complain of any threat?

The attacks caused grave apprehension to me and my family but with prayers from friends as well as other Kenyans and even foreigners, the Lord gave me peace of mind that surpasses all understanding and I successfully soldiered on to the end.

9. In the aftermath of the judgment on the petition arising from the August 8, 2017 presidential election, in your capacity as the chairman of the Judicial Service Commission, you issued a terse statement in which you dared your critics, some who are powerful politicians in the Executive. How has the Judiciary forged ahead in its relationship with the other arms of government, particularly the Executive?

Disagreements between arms of government are normal, even within developed democracies. But this does not necessarily hamper engagements and dialogue.

The three Arms of Government need each other. They cannot and should not operate in silos. I believe in the principle of robust independence and constructive interdependence, and this is happening despite the petitions’ fallout.

A few days before that event, I went to State House to invite the President to grace the launch of the State of Judiciary and the Administration of Justice Report. You will recall that the President honoured that invitation and personally — along with the Speakers of both Houses of Parliament — attended last month, and we had a very cordial encounter.

Today (Friday), as you are aware, I have just given the keynote address at the induction workshop for the National Assembly’s Departmental Committee on Justice and Legal Affairs. What does that tell you about our relationship?

One of the points I have emphasised in my speech this morning to JLAC is that we are not in competition. While Parliament is mandated to approve our budget and oversee the utilisation of the public funds it allocates to the Judiciary, on our part we ensure that Parliament acts within the confines of the Constitution. If Parliament passes any legislation which is unconstitutional, the Constitution mandates the High Court to strike it down. If, in its oversight mandate, Parliament overreaches and fails to follow due process, Article 165(6) of the Constitution grants the High Court powers to prohibit such unlawful course.

10. In three years from now, you will be attaining your mandatory retirement age. That will be in 2021 which will be just a year or less to the 2022 General Election. Have you considered leaving earlier than the date of your retirement date, much like your predecessor Dr Willy Mutunga did, or do you intend to see out your entire term?

It is too early to discuss my retirement, really. I still have quite a bit of work to do, and there is time to do it. But when we come near the time, I will take a decision which I think will be in the best interest of the country.

11. Do you think the Judiciary has a role in the current political standoff between Jubilee and Nasa — in light of recent views that the Judiciary should not be involved in political disputes?

The Judiciary will, of course, not be involved in what is going on. We will not make comments about what is going on. But if there is a case filed before us we will deal with it on the basis of the facts and the law. The only way the Judiciary can comment on what is going on is through their judgments. Otherwise we will be going to the political arena which is not our area.

12. What is this one thing that keeps you awake since you were appointed the country’s Chief Justice?

One of my challenges is how to make a difference in service delivery to the Kenyans. There are quite a number of people who come to us with what somebody might look at as a simple problem but it really bothers them. My greatest challenge is how we can resolve those disputes so the ordinary mwananchi can feel comfortable. This goes to the image of the Judiciary (and) how the public are looking at us. If the public loses confidence in what we are doing then it becomes very difficult. Even when you arrive at correct decisions they will always look at you with suspicion. What I am doing is endeavouring to do all I can to enhance the image of the Judiciary as an institution that the public can rely upon.

13. Being appointed to the office of the Chief Justice of the Republic of Kenya thrust you into the limelight. How do you deal with this new-found public status? What do you miss most of your former status?

I miss my private life. Before I was appointed CJ, I would attend public functions unnoticed and enjoy listening to people – the way they interact. That has of course completely changed. I now have limited private life. I am not saying I have to hide from anything. In any case I don’t want to hide anything in my life. But I have accepted that as the nature of the public office the Kenyans have privileged me to occupy.

14. How do you relax during your free time?

I pray, I meet friends and we talk as long as they do not engage me on any matters in court and I love that. But some of my friends have been missing (laughs). They need to come and say ‘Look, we know you have got challenging decisions but we wish you the best’. Of course I also play some games which are good for my health.