Why Maraga wants early retirement

Thursday, February 20th, 2020 00:00 | By
Chief Justice and President of Supreme Court, David Maraga. Photo/PD/CHARLES MATHAI

Reports that Chief Justice David Maraga may opt for early retirement, less than a year before his term comes to an end, have created disquiet within the Judicial Service Commission (JSC).

Maraga, 69, is expected to leave office on January 12, next year, upon attaining 70 years as stipulated by the Constitution.

However, it is understood that the CJ, who is also the President of the Supreme Court, has signalled his intentions to retire early, just like his predecessor Willy Mutunga.

The reports have raised fears of a possible crisis at the Judiciary and the Supreme Court.

The JSC, which employs judges and magistrates, is currently grappling with insufficient numbers of Court of Appeal judges following a protracted standoff with President Uhuru Kenyatta, who has refused to appoint nominees presented to him.

A full sitting of the JSC scheduled for yesterday had to be cancelled to allow further consultations on “some serious arising matters”.

The commission had set recruitment and interviews of officials of the National Council on the Administration of Justice and the stalemate on appointment of Appeal judges as the key agenda items, but Maraga’s early retirement request is said to have caught members off-guard.

Sources told the People Daily that the CJ had instructed Judiciary Chief Registrar Anne Amadi to include his early retirement request as part of the agenda.

However, when the agenda was circulated to commissioners ahead of the meeting, Maraga’s request was not included, even as an AoB. The sources indicated that Maraga, who chairs the JSC, protested the move, leading to the cancellation of the meeting.

Contacted, Amadi laughed off the claims, saying it was not the first time such a meeting was being postponed, noting that they have done so in the past “when an issue of national importance comes up”.

Amadi said she was not privy to Maraga’s retirement request.

“I am not aware of the CJ’s request to leave early, but should such a proposal be made, it will be handled through appropriate channels,” she said.

But impeccable sources indicated that the adjournment of yesterday’s meeting was necessitated by divisions within the JSC on how to handle Maraga’s request.

Another senior Judiciary official who cannot be named discussing his boss, revealed that Maraga was keen to protect his legacy which he feels is under threat because of alleged frustrations by the Executive.

Establish courts

“The CJ feels frustrated following budget cuts that have adversely affected the Land and Environment courts where majority of the cases affecting the common Kenyan are stuck,” said the source. 

Maraga has in the past expressed frustrations over the National Treasury’s move to cut the Judiciary budget, saying it had delayed construction of courts across the country. He had wanted to establish high courts in every county and sub-county but the budgets cuts have dealt him a blow on some of his pet projects.

For instance, the establishment of a high court in Tana River county which had none was meant to reduce cases backlog.

Additionally, the CJ had complained of the crippling of tribunal courts but have since been resuscitated after Treasury released funds. 

He is also said not to be happy with abuses hurled at him by some politicians.

And despite having seemed to have mended fences with the Executive, the CJ is reportedly still unhappy with the manner he has been treated at State functions.

In November last year, he had vowed not to attend some State functions unless the government treated him and the Judiciary with respect.

“Unless I am treated with the respect I deserve, I will choose State functions to attend. The CJ is not accorded the respect accorded to his office. CSs and PSs are cleared to enter places before the Chief Justice,” an angry Maraga had told a press conference.

He added: “The CJ has no Mercedes; when we applied,  we were told that ‘we do not want wastage’. It is wastage to buy a CJ a Mercedes 500, but it is not wastage to buy the two Speakers one.” 

The situation was compounded by effects of budget cuts that left Judiciary without essentials such as fuel for cars, tea, photocopying material and other facilitations for himself and other judges.

President Kenyatta’s delay in appointing 41 judges who were recommended for promotion by JSC seemed to have put the last nail on Maraga’s legacy plans.

A three-judge Bench comprising Justices Lydia Achode, James Makau and Enoch Chacha Mwita recently ruled that the President has no mandate to review, reconsider or decline to appoint those recommended for promotion by the JSC.

Despite the ruling, Judiciary is still waiting for the President’s word, with reports that some of those selected for promotion had outstanding issues touching on corruption and personal integrity questions.

If it comes to pass, Maraga’s early exit will likely jolt the Supreme Court given that Justice Jackton Ojwang’ proceeded on terminal leave from January 5 pending his retirement.

Challenge suitability

Justice Ojwang’s departure left the apex court operating with the bare minimum of five judges – Maraga, Smokin Wanjala, Mohamed Ibrahim, Isaac Lenaola and Njoki Ndung’u. This is because of the absence of Deputy Chief Justice Philomena Mwilu, who no longer seats on the Bench as a petition challenging her suitability to serve is pending at the JSC.

The petition was filed by the Director of Public Prosecutions and the Directorate of Criminal Investigations.

The commission is scheduled to meet early next month to hear and determine the petition, in which the DCI and the DPP want Justice Mwilu hounded out of office.

The petition was filed at the commission after a five-judge Bench blocked the DPP’s attempt to charge Justice Mwilu in court in relation to alleged criminal conduct.

The move, if successful, will technically kick her out of the Maraga succession race.

Insiders say the politics around Maraga’s succession has seen lobbying split the courts in as far as support for hopefuls is concerned.

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