Imbalance in the two arms of Government of Kenya

Addressing the press at the Supreme Court on Monday 8/6/020 morning, Justice Maraga cut a lonely figure as he read a statement expressing his frustrations by the Executive.

He lamented the piling cases which he said will take years to clear. So dire is the situation that Justice Maraga said that a land case filed this year will be heard in 2022.

“If you file a land case at the Environment and Land Court at Milimani, Nairobi, today, the earliest your case will be heard is 2022. This is because we have 31 judges against 15,437 cases as of March 31, 2020,” he said.

The CJ said that cases at the courts have been increasing since the court operations were downsized on March 15 due to the coronavirus outbreak but there was no balance between the filing of cases and their prosecution because of the limited number of judges.

And after highlighting the crisis eating up the courts, the Chief Justice, who is also the President of the Judicial Service Commission (JSC) attributed the problems to President Uhuru’s refusal to appoint 41 judges to help in the prosecution of cases. 

Thia shortage and near paralysis of court operations has been caused by the President’s refusal to swear 41 judges recommended by Judicial Service Commission in July 2019 for appointment to the Court of Appeal, the Environment and Land Court and Employment and Labour Relations Court,” lamented CJ.

He accused the Head of State of defying two court orders that directed him to swear in the judges within 14 days. In the cases, two petitioners filed a case against the JSC and in the other, a petitioner, Adrian Njenga filed a case against the Attorney-General over the same matter.

President Uhuru told the courts through the AG that he had received intelligence that some of the judges had integrity issues and he was considering legal and administrative issues which would involve reviewing JSC recommendations.

However, according to CJ Maraga, the court in the two separate rulings quashed this on the grounds that the President had no legal jurisdiction to alter the recommendations of JSC or subject it to any review.

Multiple court orders

The CJ did not only point at the Executive for its stubborn stance on the appointment of judges, but he also said there are numerous court orders yet to be complied with.

It is a bulldozing attitude that he said had rendered courts functionless and mere toothless institutions. For example, CJ Maraga claimed that many Kenyans who fell victims of road accidents after being knocked by government vehicles had not been compensated. And attempts made by courts are always repulsed contemptuously.

“Attempts to compel accounting officers in the relevant ministries are always rebuffed by contemptuous “uta do” [what will you do?] attitude. How can we expect God to bless our nation when we are so callous to the most desperate in our society?” he posed. Besides these are other victims of police brutality that the head of Judiciary said are yet to realise the fruits of justice.

The Chief justice cited demolitions in Nairobi’s Kariobangi estate, where he accused the Executive of proceeding with the evictions of families during the Covid-19 pandemic despite a court order being issued against it.

Futile attempts

In a low tone of pain and desperation, the CJ resorted to addressing the President as he revealed that a press conference was his last resort after failed attempts to meet him (President) to solve the matter.

“It will be a dereliction of my duty if I do not raise Wanjiku’s agonies in my domain. At least let her know that I share in her frustrations,” he stated as he referred to his pleas.

“It is for this reason that I must remind you of your Excellency that swore to defend and uphold the Constitution and the laws of Kenya…The laws of this country include valid court orders,” he further said.

“It, therefore, behoves you to appoint 41 persons recommended for appointment by the JSC as ordered by court without any further delays.”

He also urged the President to direct the Attorney General Kihara Kiriuki to conduct a count of all the valid court orders so that the Executive can comply with them as required.

This is not the first time that the friction between CJ Maraga and the Executive plays out in the open. Last year, Justice Maraga addressed a press conference where he decried what he termed as the calculated devaluation of the Judiciary and its officers. He then swore to only attend public functions of his choice.

It is widely believed the frosty relationship between the President and the Chief Justice was sparked off by the historic decision by the Supreme Court nullifying the 2017 presidential election, citing irregularities.