Maraga must shun appeasement, defend independence of Judiciary

In response to the extraordinary judgment in which the Supreme Court annulled results of the presidential elections held in August last year, the political establishment staged a show of unprecedented rage, with President Uhuru Kenyatta famously promising that “we will revisit” the matter at an appropriate time. The drastic cuts on the Judiciary’s budget for the year 2017/18, which has now been reduced nearly by half, is now seen as a fulfillment of the president’s promise about revisiting the Judiciary.

Part of the political wrath that Jubilee staged at the time was an inquisition against the Registrar of the Supreme Court, Esther Nyaiyaki, against whom a multiplicity of public institutions commenced an investigation that promoted a tendentious view of the multiple controversies that the Supreme Court judgment brought out. It soon became clear that going after Ms Nyaiyaki had nothing to do with her as a person, and was always a way of weakening targeted judges, with a view to going after them.

Although there have since been many occasions when there has been a display of amity between the Jubilee leadership and the Judiciary, this has been formal rather than warm. It is clear that the events after the presidential election last year left enduring damage to the relationship between the two. In the period after the Supreme Court judgment, the political establishment has shown heightened interest in the internal affairs of the Judiciary, most recently in internal elections.

When, after the resignation of Prof Githu Muigai as Attorney General, President Kenyatta nominated Court of Appeal judge, Kihara Kariuki to replace him, the position of president of the court which Kariuki occupied until then, also became vacant and needed to be filled.

That vacancy coincided with another in the Judicial Service Commission (JSC), which had arisen following the expiry of the term for Mohammed Warsame, also of the Court of Appeal. Thus, by coincidence, the Court of Appeal was required to hold two elections, one to elect its next president and the other its representative to the JSC.

There was significant external meddling in the elections, with suggestions the government had preferred candidates for the two positions. The effect of the interference was that it consolidated the resolve of the judges to elect candidates other than those seen as favourites of the establishment. As a result, William Ouko was elected the new president of the Court of Appeal, and Warsame, was re-elected to the JSC, both garnering landslides victories. Both won because they were viewed as independent of the establishment.

In a strange turn of events, however, a fresh hurdle was placed in the way of Warsame when, after his re-election, the National Assembly announced that he could not take office without undergoing vetting by a parliamentary committee. Warsame was not required to undergo vetting when he was first elected to the JSC. Further, no other elected member of the JSC has ever been subjected to a requirement as to vetting, leaving questions as to why the special treatment against Warsame, which were never convincingly addressed.

The only plausible explanation seems to be that the establishment was getting back at the Judiciary both because the Court of Appeal had disregarded its preferences in the two elections and also a continuation of the retribution against the leadership of Chief Justice David Maraga.

While financial cutbacks were not necessarily expected, they are hardly surprising, and represent a continuation, by other means, of the cold relationship between the Judiciary and the government. Although it is also possible that the Jubilee leadership did not deliberately engineer a reduction of the Judiciary’s budget, it is clear that the attacks since last year have set the tone on how the Judiciary should be treated. Denuded of official favour, the Judiciary now lacks a political champion and is fair game to the treasury and legislative mandarins who fix the budget.

In this context, Justice Maraga finds himself in a place of unprecedented difficulty, one that no recent predecessor has been in. The manner in which the Supreme Court handled the second presidential election petition was already a significant fall from the very high standards that the court had established when it annulled the first one.

Many thought that the Judiciary had chosen appeasement towards the establishment, after the shock annulment of the first. If appeasement, it was not enough and nothing that the Chief Justice now does will ever be. As long as he remains in office, no reliance can ever be placed on the Judiciary when dealing with issues that risk vested interests.

The budget cuts must be seen as forming part of a strategy of hollowing out the Judiciary with a view to eventually taking it over, as was once the case. After all, the establishment has already taken over most other independent institutions, like the police and the land commissions. In this situation, Justice Maraga must now abandon the policy of appeasement, and must articulate a bold and public defence of the independence of the Judiciary, as this is his only source of protection.

- The writer is Executive Director KHRC. [email protected]