Maraga and Uhuru must work together
What you need to know:
- Insufficient funding forces the Judiciary to cut on staff recruitment, expansion of courts, official travel to handle cases and acquisition of resources such as digital technology.
- First, the appointment of judges is expressly articulated in the Constitution and the Judicial Service Act.
Once again, the Judiciary and the Executive are at loggerheads over constitutional questions.
But underneath that is a war of wits. Two constitutional issues are in contest. The first is President Uhuru Kenyatta’s refusal to appoint 41 judges who had been interviewed and recommended by the Judicial Service Commission (JSC). The second is failure by the Executive to obey court rulings.
Collectively, these depict the Executive as recalcitrant and an impediment to the rule of law.
Right from the outset, however, we take exception to how Chief Justice David Maraga prosecutes his case — in the public court — instead of boardroom engagement with the President or members of the Executive responsible for some of the issues he is aggrieved about.
LAMENTATIONS
Hence, Mr Maraga cast an image of desolation and helplessness, yet he is the head of the Judiciary, one of the three arms of government and which bestows his office with dignity and privileges. And if the CJ has been reduced to mere lamentations, where does that leave the ordinary citizen?
Lurking in the background is the view that Mr Maraga is paying the price for nullifying President Kenyatta’s election in 2017, leading to the latter’s ignominious public statement that they “will revisit” the matter.
But his approach notwithstanding, the issues the CJ canvasses are weighty. In the past, he has challenged drastic cuts to the Judiciary’s budget, arguing that they harmed the administration of justice.
Insufficient funding forces the Judiciary to cut on staff recruitment, expansion of courts, official travel to handle cases and acquisition of resources such as digital technology.
Cumulatively, these circumscribe the operations of the institutions. The consequence is a huge case backlog, an injustice to citizens.
- The issues are uncanny. First, the appointment of judges is expressly articulated in the Constitution and the Judicial Service Act.
COMPETITIVE PROCESS
JSC is mandated to nominate candidates for appointment to the President in a competitive process. The President’s hands are tied: He makes appointments once he gets the list of nominees and, in the event of reservations, has to articulate that in writing to the JSC.
Underpinning this provision was the need to insulate judicial officers from political interference.
Non-compliance with court orders undermines the authority of the judicial system and brings to question the Executive’s fidelity to the rule of law.
The cornerstone of the 2010 Constitution is dispersal of powers, strengthening institutions and divesting untrammelled powers from the Executive.
That has to be respected. President Kenyatta and Mr Maraga must work collaboratively.
