Chief Justice David Maraga is leaving the Judiciary as tough a fighter as he was when he was appointed to head the legal arm of the government.
With passion and emotive anecdotes, the President of the Supreme Court, who is proceeding on terminal leave early next month, yesterday revisited his criticism of the President and the Executive for, he said, sidelining the Judiciary and affecting its service delivery to Kenyans.
“The Judiciary’s performance would certainly have been a lot better, but for three reasons: Interference with and frustration of its independence, refusal to grant it financial autonomy, and disobedience of court orders,” he said at the launch of the State of the Judiciary and the Administration Justice report for the 2019-2020 year at the Supreme Court in Nairobi.
The Chief Justice had a bone to pick with President Uhuru Kenyatta’s refusal to appoint the 41 judges who were recommended by the Judicial Service Commission, and cautioned that the President’s decision was tantamount to taking Kenya back to the old days when the Judiciary was just but an appendage of the Executive.
“The history of Judiciary subservience is well documented by legal historians and government experts. This judicial subservience has serious implications for individual liberty, human rights of citizens, shared prosperity and economic development of the country,” he said.
“Despite clear provisions in the Constitution and three court orders, the President has failed to appoint the 41 judges — now 40 because one of them has since died — recommended to him by the Judicial Service Commission,” he said, before adding: “Both the High Court and the Court of Appeal have been categorical that the President has no residual legal power to question or reject the names given to him by the JSC, but to appoint them.”
Should the President be allowed to cherry-pick from the list of nominees, Chief Justice Maraga warned, the independence of the Judiciary would be irreparably ruined and the presidential mischief and patronage in the appointment of judges that was prevalent under the old Constitution would be restored. He advised the President to present his reservations regarding the integrity of the nominated judges to the JSC for investigations.
CJ Maraga also lamented the financial undercuts that threaten to cripple the Judiciary. Only 47 per cent of its financial requests are funded, he said, adding that “the Judiciary would be terribly weakened if it were to be left to the benevolent discretion of any arm of government”. He linked the tribulations to the nullification of the 2017 presidential election result, which he said prompted “revisiting by the President”.
“When in September 2017, the majority of the Supreme Court judges nullified the presidential election, it is on record the President threatened to revisit and the following financial year, we saw a reduction of the development vote of the Judiciary budget from Sh2.1 billion to a paltry Sh50 million,” CJ Maraga recounted.
That reduction of budgetary allocation has made the completion of all court buildings funded by the government impossible. Currently, 33 out of the total 61 courts under construction were being funded by the State. The World Bank has funded the building of 28 others.
“It is indeed a miracle that the Judiciary has continued to deliver service to the people of Kenya, thanks to the sacrifices of our judges, judicial officers and staff, and the support from the World Bank and other development partners,” he said.
The Chief Justice also lamented the ever increasing caseload as more cases were being filed yet the Judiciary’s workforce is dwindling. The Court of Appeal, which is statutorily required to have a complement of 30 judges, is currently served by 16. Due to lack of enough manpower, the case backload at the Court of Appeal increased from 3,681 in 2019 to 4,982 in 2020, with the court’s case clearance rate dropping from 51 per cent to 41 per cent.
This trend, CJ Maraga noted, was true across all the courts in the country, making it increasingly difficult for the Judiciary to deal with the rising number of cases.
Kenya’s number of pending cases has been on an increasing trajectory. In the year 2016/17, there were 499,341 of such cases, which rose to 533,187 in the year 2017/18, and 569,859 in the next year. At the end of June this year, pending cases in the Kenyan courts stood at 617,582.
“Without increasing human resource capacity in the number of judges and judicial officers, the elimination of this backlog will remain a pipe dream,” said Mr Maraga.
He also called for the respect of the rule of law, with many court orders being dismissed and disobeyed by not only senior government officials but also police officers. “We are either a nation governed by the rule of law and principles of constitutionalism or a jungle republic that Thomas Hobbes talked about a few centuries back where life is solitary, poor, nasty, brutish and short. History is replete with examples that those who nurture the tree of impunity tend to, in the not too distant future, fall victims of their own labours,” he said.
The CJ also asked Kenyans to reflect on the constitutional changes that are proposed in the Building Bridges Initiative report.
“Any changes that breach the principle of separation of powers or threatens judicial independence could be, without a doubt, very dangerous and retrogressive,” he cautioned.
He then went for legislators’ jugular and asked them to commit reasonable resources — an allocation of at least 3.7 per cent of the national budget — to the Judiciary, and the money be immediately deposited in the Judiciary’s accounts. He also demanded that the Judiciary development vote be allocated at least between five and ten billions shillings every year to construct appropriate courts across the country.
“Only these measures would truly inoculate the Judiciary against the vagaries of short-term political interests expected of the political branches of government,” he said.
Aware of the challenges present in the courts, the outgoing Chief Justice urged the judges and magistrates still in service to be courageous and discharge their duty with unwavering integrity.
“You are the hope of this country. Please remember that the Judiciary plays a critical role in the political stability and economic prosperity of this country,” he said, then fired a warning shot at the judges with regards to the forthcoming elections.
“If you falter in the discharge of your duties in determination of electoral disputes in the 2022 general elections. What we experienced in 2007/8 elections would easily recur, with worse intensity and implications. Please, please judges, do not let that happen,” he said.
