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Maraga brags of solid legacy, says Judiciary now stronger

By Bernard Gitau
Monday, November 30th, 2020
Outgoing Chief Justice David Maraga in his office. Photo/PD/SAMUEL KARIUKI
In summary
    • Chief Justice David Maraga said he does not hold anything personal against the President, but only concerned with Uhuru’s failure to appoint 41 judges as recommended by Judicial Service Commission.

Chief Justice David Maraga  has said that he will leave the Judiciary in January with his head held high. 

In his final State of the Judiciary report on Friday, Maraga said that although he did not accomplish everything he wanted, he leavies behind a solid, bold and strong Judiciary.

He called on all Kenyans and judges not to gamble with the independence of the Judiciary.

“It is indisputable that during the former constitutional era, like it was the case during the colonial era, the Judiciary was an appendage of the Executive,” Maraga said.

 He said although the Independence Constitution textually embraced the doctrine of separation of powers and provided for an independent Judiciary, that separation was only on paper.  

“The Judiciary remained, substantively, at the call and beck of the Executive Arm of Government.”

 Maraga noted that the passage of the 2010 Constitution deemed judicial independence imperative for it to effectively discharge its mandate, created one in Chapter Ten.

 At the same time, Maraga addressed the issue of his perceived differences with President Uhuru Kenyatta, saying he only took issue with the Head of State’s failure to appoint  41 judges as recommended by the Judicial Service Commission.

 “Despite this clear provision and three court orders, the President has failed to appoint the 41 Judges (now 40 because one has since, unfortunately, died) recommended to him by the JSC,” he said.

Maraga noted that the entire Constitution does not require the President to perform any other act upon receipt of the names recommended by the JSC, except to appoint them. 

“President cannot cherry-pick from the list of nominees. If that is allowed, the independence of the Judiciary will be irreparably ruined,” said Maraga.

 He added the presidential mischief and patronage in the appointment of judges that was prevalent under the old Constitution, and which is precisely what the new Constitution sought to remove by these new provisions, would effectively be restored.

Clear interference

“This failure to appoint the 41 recommended individuals is clear interference with the independence of the Judiciary with the result that backlogs in our courts have continued to soar,” he said.

Maraga urged the President to appoint those Judges without any further unnecessary delay.

Maraga also decried state refusal to grant the Judiciary Financial Autonomy.

“Financial autonomy is a critical aspect of judicial independence. For it to effectively discharge its mandate, the Judiciary requires not just adequate financial allocation, but also real financial autonomy,” he added.

He noted currently, the Judiciary lacks both as only 47 per cent of its financial requests are funded and the Executive has failed to operationalise the Judiciary Fund.

Maraga revisited September 2017, the Supreme Court nullification of the presidential election, where the President threatened to “revisit”.

 “The following financial year, we saw a reduction of the development vote of the Judiciary’s budget from Sh2.1 billion to a paltry Sh50 million,” said Maraga.

Maraga also claimed other arms of Government are sadly provoking reprisals against the Judiciary.

 “JSC has on some occasions had court orders issued against it. If it appeals and loses, at times, it obeys and such decisions have had no bearing on the career stability or progression of those judges and magistrates who have issued them,” he added.

 Outgoing Chief Justice also took the stage to express concerns over disobedience of Court Orders by the Executive. 

 “I am not here only referring to disobedience of orders affecting prominent people in our society. I am referring to court orders generally,” he said.

Due to the above issues, he said it is in this vein that he asked Kenyans to reflect on the constitutional changes that are proposed.

 “The True North, ever constant criterion in assessing any changes affecting the Judiciary should be whether the envisaged changes aggrandise or diminish judicial independence,” he said.

 He added any changes which breaches separation of powers or threaten judicial independence would be, without a doubt, a dangerous retrogression from the path of constitutionalism Kenyans chose in 2010.

“As I exit in the next few weeks, if you want our courts to determine cases within two years and attract investment as happens in countries like Singapore, your parliamentarians have to commit reasonable resources to the Judiciary,” he summarisede.

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