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No rest for Maraga as in-tray spills over

Sunday September 25 2016

Justice David Maraga at his home in Nairobi on September 22, 2016. If the House approves, the President will have three days to appoint Justice Maraga the next CJ. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

Justice David Maraga at his home in Nairobi on September 22, 2016. If the House approves, the President will have three days to appoint Justice Maraga the next CJ. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP 

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The presumptive Chief Justice David Maraga is likely to experience a very short honeymoon period once formally appointed to the position.

Already, his in-tray is overflowing with judicial and administrative duties crying out for his attention.

Of immediate concern for Justice Maraga, according to legal experts, is to reform the Supreme Court of which he will be president.

“It is no secret that the crisis that gripped the Supreme Court as his predecessor’s term came to an end greatly undermined the collegiality of judges within this apex court,” said Law Society of Kenya president Isaac Okero.

“It is important that he re-establishes and reinforces a sense of judicial comity to enable the court to function well. There are many ways of promoting this. During my tour of the US Supreme Court, after conclusion of the International Bar Association 2016 conference in Washington DC, I learnt that Chief Justice Melverley W. Fuller, who served from 1888 to 1910, introduced, as a tradition observed to this day, the conference handshakes between all judges before and after every session of the court and private conference to serve as a reminder that differences of opinion did not preclude overall harmony of purpose.

There is work for our new CJ to do. Kenyans have been able to see tension in the body language of some of our justices, and plain disagreement in the act of judges leaving the court at the very last session under former CJ Mutunga.”


Senior Counsel Ahmednasir Abdullahi took a similar view: “The Supreme Court is in my view now the most discredited court in Kenya because of what came out of the Justice (Kalpana) Rawal and Justice (Philip) Tunoi retirement cases.

The cases made the Supreme Court to implode. Justice Maraga has to fix it as soon as he is appointed. He has no time for honeymoon.”

The retirement case had divided the court down the middle with one side led by former Chief Justice Willy Mutunga and consisting of Justices Mohammed Ibrahim and Smokin Wanjala perceived to be for their colleagues to retire at 70 and not 74 years.

On the other hand, Justice Jackton Ojwang’ and Justice Njoki Ndung’u were sympathetic to Justices Rawal and Tunoi’s plight.

In fact, it was Justice Ndung’u who granted a stay order to the unanimous Court of Appeal judgment that had held the retirement age for all judges at 70, notwithstanding the time one was appointed.

On Justice Mutunga’s last day, Justices Ojwang’ and Ndung’u did not sit to deliver the decision, denying the lawyers for their colleagues a stay order they had applied for.

The retirement case had turned out to be toxic for the Supreme Court with the Judicial Service Commission (JSC) admonishing Justices Ndung’u, Ojwang and Ibrahim for allegedly taking part in a go-slow in solidarity with Justice Rawal and Justice Tunoi.

Besides the retirement case, two of the current Supreme Court judges, Justice Wanjala and Justice Ojwang’, were candidates in the just-concluded exercise to take over as the Chief Justice.

According to Mr Ahmednasir, the Chief Justice-designate Maraga must be alive to that fact, that he will be leading a team of rivals.

“He has to bring about a re-birth of that court by initiating radical reforms. If he doesn’t do that, the court will not be credible to deal with the 2017 election,” said Mr Ahmednasir, who previously served as a commissioner in the JSC.

It is a contention the vice-president of the Law Society of Kenya (LSK) Faith Waigwa agrees with, saying the disharmony has been caused by differences in opinion.

“The disharmony is perhaps a perception, which the new CJ should work to reverse. He needs to bring harmony amongst the judges of the Supreme Court,” said Ms Waigwa.

Article 163(3a) of the constitution gives the Supreme Court the “exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President”.

And Justice Maraga, once formally appointed, will have just over 300 days to get the Supreme Court ready for such an eventuality.

Even though Justice Maraga has been chairing the Judiciary Committee on Elections, nothing about elections is ever certain until it happens.

But even as he restores Kenyans’ faith in the Supreme Court, his attention will also be on safeguarding the independence of the judiciary.

Soon after the JSC announced its decision on Thursday, former Prime Minister Raila Odinga acknowledged the executive’s attempts to control and sometimes even muzzle the judiciary.

“Justice Maraga will face many challenges as the head of the judiciary including … resisting the long and intrusive hand of the executive, which constantly tries to control and manage the courts and stopping delays in the administration of justice,” Mr Odinga said as he welcomed the JSC’s recommendation.

That intrusion is not far-fetched. In 2013, for instance, President Uhuru Kenyatta tried to suspend members of the JSC who had been allegedly involved in turf fights with the former Chief Registrar of the Judiciary Gladys Boss Shollei.

He went ahead to appoint a tribunal, which ironically was to be headed by Justice (rtd) Aaron Ringera, who was one of the 13 candidates for the CJ in the recent recruitment.

The court eventually declared both moves unconstitutional.

But arising from the same JSC fights, the Public Accounts Committee (PAC) of the National Assembly attempted to summon some members, including the former CJ Mutunga, which attempts were turned down.

Meanwhile, the amendments to the Judicial Service Act were yet another way the executive wanted to have a direct say in the appointment of the CJ and the DCJ.

The amendments were declared unconstitutional though Attorney-General Githu Muigai in August appealed the same. The appeal is still pending before the Court of Appeal. 

“Everybody knows that Willy (Mutunga) was fiercely independent and kept away so many interests, both from the executive and private individuals. Justice Maraga needs to carry on with that,” said Mr Abdullahi.

With the two battlefronts clear to even outsiders, the third challenge Justice Maraga will face is how to deal with the case backlogs.

The State of the Judiciary and the Administration of Justice Annual Report 2014 – 2015, which was released just before Dr Mutunga left, highlights this enormous task.

“The reduction of case backlog has remained a centrepiece of judiciary transformation programme. At the end of FY2014/15, the total caseload stood at 612,309,” the report stated.

A member of the Bench who spoke to the Sunday Nation on condition of anonymity gave an indication of the task at hand.

“There are more than 40 million Kenyans but only 600 judges and magistrates handling 600,000 cases. The ratios are terrible. This has caused a backlog of cases,” he said.

He added that the lack of electronic recording of proceedings was a major drawback for members of the Bench.

“A judge has to write down proceedings physically. Because one sometimes has to paraphrase and not write verbatim, a lot is lost. The CJ and Registrar should actively be pushing for legislation to change the structure of the judiciary and allow things like electronic recording and stenographers,” he added.

For Mr Abdullahi, improving delivery of justice services to Kenyans is not an option for the incoming CJ but something that will demand his immediate attention.

“The judiciary, as it is now, is inept and corrupt. He has to rescue it from the unparalleled levels of corruption. Besides, there is no reason right now why a single case should be heard in perpetuity.

When Willy (Mutunga) came there were very few judges. Now that the number has gone up by almost 300 per cent, why can’t the delivery of justice to Kenyans improve?” asked Mr Ahmednasir.

He also says that another major challenge the new CJ will have to tackle concerns corrupt lawyers.

“I believe he has the muscle to achieve what Kenyans desire. He is very firm but he also listens to people. Besides, he is an all-rounder kind of a person having been on both sides of the Bar and the Bench for years.

For that he knows what ails the judiciary and how it can be resolved. I am sure he will get a lot of support from the lawyers and the public. He has everything going for him to succeed,” said Mr Abdullahi.

Mr Okero urged the new CJ to demonstrate firm leadership of the JSC and continue the reform process within the judiciary.

He also called on the CJ to speed up the changes to promote greater access to justice for Kenyans.

National Assembly Majority Leader Aden Duale pledged Jubilee support for Justice Maraga once the name is forwarded to Parliament.

“For practitioners of the law further reforms of the judiciary is necessary as it will reduce the pressure of serving the consumers of justice before congested courts inadequate in number. The hearing of land cases is one issue that must be urgently addressed.”