CJ Maraga blasts President Kenyatta for disobeying the law, paralysing court operations

Chief Justice David Maraga now says President Uhuru Kenyatta is responsible for the operational crisis being witnessed in the Judiciary and which continues to hamper administration of justice in the country.

In a statement likely to deepen tensions between the Executive and Judiciary, the Chief Justice on Monday said President Kenyatta has refused to appoint 41 judges recommended by the Judicial Service Commission (JSC) in outright disobedience of two court orders and the Constitution.

Maraga said the prolonged refusal by the President to appoint the 41 judges has created a serious shortage of judges in various courts, so much so that the hearing of some cases may have to be pushed to 2022 due to the backlog.

“It is important to clearly and categorically state that this shortage of judges and the near paralysis of court operations has been caused by the President. The President has persisted in his refusal despite orders in two cases requiring him to swear in those judges within 14 days,” said the Chief Justice in a press briefing.

He cited the situation at the Environment and Land Court saying the department has only 31 judges countrywide yet as of March 31 this year, it had a backlog of 16, 457 cases.

“If you file a land case in the Environment and Land Court (ELC) at Milimani today, the earliest your case will be heard is in 2022. This is because we have a total of 31 ELC judges in the country against a case backlog of 16, 457 as of March 31, 2020,” said Maraga.

“The situation is probably worse at the Court of Appeal which has only 15 judges serving the whole Republic with a case load of 7,315 as at March 31,2020 and at the Employment and Labour Relations Court, which has only 12 judges throughout the republic against a case load of 13, 197 cases as at March 31, 2020.”

The Chief Justice noted that the President, through the Attorney General, argued that there were some integrity issues with some of the 41 judges but the arguments were rejected by the court.

Maraga maintains that the President has no legal power to question or reject names recommended to him by JSC for appointment in accordance with the Constitution.

“The courts ruled that the president cannot change the list, review it or reject some names. He cannot decide cherry pick from the list of nominees. Both courts ruled the President must appoint the persons as recommended and forwarded to him by the JSC,” said Maraga.

“The Constitution does not donate to the President to perform any other act upon receipt of the names  recommended by the JSC except to appoint them. Both courts categorically held that the refusal by the president to appoint the 41 judges was a grave violation of the Constitution.”

The Chief Justice says he has challenged the Executive to table before the JSC the alleged integrity issues it has against some of the 41 nominees but no evidence whatsoever was availed to the commission both during and after the interviewing process.

He went further to accuse the Executive of being notorious in disregarding court orders.

“Unfortunately, this disregard of Court Orders by the President is part of the pattern by the Executive,” said Maraga, giving the recent Kariobangi evictions as an example.

He noted that attempts to compel accounting officers in the relevant ministries to settle court decrees issued by various courts against the government are always rebuffed with the “contemptuous ‘Uta Do’ attitude.”

The Chief Justice now wants President Kenyatta to appoint the 41 judges “without any further delay,” as a demonstration of his “faith and respect for the Rule of Law.”

“As your Excellency has pledged in the past, you respect the Rule of Law. I urge you to now demonstrate that faith and respect for the Rule of Law by complying with those two Court Orders. In doing so, you will also alleviate much suffering for Kenyans who are seeking justice in our Courts. In the same vein,” said the Chief Justice.

Maraga has also called on the President to instruct the Attorney General to take stock of all the Court decrees and orders issued against the Government and to immediately begin a process of satisfying them.