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When the Judiciary and Executive fight, they won’t be the only losers

Sunday November 10 2019

Judiciary

Chief Justice David Maraga holds a press conference at the Supreme Court on November 4, 2019, revealing the woes his agency is battling. He said he will not let the Judiciary be compromised. PHOTO | DENNIS ONSONGO | NATION MEDIA GROUP 

KWENDO OPANGA
By KWENDO OPANGA
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That Kenya's Executive, Legislature and Judiciary will sometimes disagree cannot be gainsaid.

The three exist to keep each other in check and despite clear lines of authority, operation and limits, their paths inevitably cross.

However, sitting atop the edifice of Kenya's governance, they cannot escalate their fights for this could result in paralysis in government. Reasoned discussion should help hold together the triumvirate that is government.

But they are fighting again. The Executive and Parliament have again ganged up against the Judiciary, seemingly determined to bring it under heel.

Their weapons of choice, as usual, are to discredit the Judiciary and deny it funding.

So when the Supreme Court annulled President Uhuru Kenyatta's August 2017 poll win, he threatened revenge if he won the re-vote.

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He abused the Supreme Court judges, who found against him, as a crooked sextet unfit to reverse the will of millions of Kenyans.

BUDGET CUTS

That was his law: heads I win, tails my opponents lose. On cue Parliament swiftly reduced the Judiciary's budget by Sh1.9 billion to cater for the court-ordered October 26 re-vote. The message was stark: you ordered this poll, now pay for it.

Last month, President Kenyatta refused to approve 40 nominees for judges, saying they were tainted by issues of integrity. And Treasury slashed the Judiciary's budget by a whopping 50 per cent.

Whatever way, shape or form the Executive and or Legislature choose to punish the Judiciary, the result will always adversely affect the dispensation of justice. Always justice will be delayed and therefore denied.

Always ordinary people will suffer. Kenyans will find it increasingly difficult to access justice because the judicial system will scale back its services.

So the Executive and Legislature are subjecting the people to anguish in order that it may punish the Judiciary for disagreeing with them.

PUBLIC OPINION

So facing an expectant public, being strangled by the Executive and Legislature, and driven into dire straits, Chief Justice David Maraga called a news conference on Monday.

He exposed the financial choke-hold the Executive has imposed on the Judiciary and its adverse effects on the delivery of justice.

Thanks to budget cuts, he said, mobile court circuit has ceased; the High Court can no longer sit outside Nairobi, and tackling the case backlog is in jeopardy; judges can no longer report to work because they cannot fuel their cars, and the Judiciary cannot use internet WI-FI.

At a personal level, the CJ said he was not accorded the same respect as Cabinet Secretaries, especially at public functions. In other words, Mr Maraga took his case against his tormentors to the court of public opinion.

It was simple: your Judiciary wants to serve you and is doing everything within its power to dispense justice, but we are increasingly crippled.

We are starved of funds and cannot offer some of the most essential services. The Executive has denied us funds to make us puppets.

UNDER ASSAULT

Should the public listen? Yes. A Judiciary that is a puppet of the Executive will equally be available for rent and auction by and for the rich few and the wheeler-dealer cartels against the deserving legion poor.

Two, the writing has been on the wall. Some time last year, I warned that Mr Maraga, who doubles as President of the Supreme Court, was a dead man walking.

I also wrote that the Executive had unleashed a scorched earth policy against the Judiciary.

The trigger for my piece was a deeply insulting letter sent to the CJ by Mr Raphael Tuju, the Secretary-General of the governing Jubilee Party and Minister Plenipotentiary.

He accused Mr Maraga and the Judiciary of bias, incompetence, duplicity, fraud and, worse, disregarding the law.

The increasingly powerful Minister for Interior Fred Matiang'i piled on: "We are pretending that we have a credible Judiciary; we do not have one. I am one of the people who have been frustrated by their blatant bias and we have clear cases of incompetence."

PRUDENCE

There is ruinous incompetence in the Executive and Legislature, but the remedy is not to deny them funds.

It is for the three arms of government to isolate the incompetence and incompetents and weed them out.

Only then would the Judiciary realise its transformation blueprint which, inter alia, brilliantly commits to: "Focus on deliberately making justice more pro-poor especially in certain critical areas which impact the poor more: succession and land matters."

When arms of government go to war, they fight their own people.

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