Chief Justice David Maraga has sent a reconciliatory message to President Uhuru Kenyatta as he read his last State of the Judiciary report before retirement.
With less than three weeks before he goes on terminal leave pending his retirement in January, an emotional Maraga bore it all with the frustrations he had to overcome, the fight with the Executive, his differences with colleagues at the Judiciary and the joys of standing firm.
Justice Maraga, in his farewell speech, traced his frosty relationship with President Kenyatta to the 2017 Supreme Court decision to nullify the presidential election but said he has nothing personal against the Head of State and apologised to anyone he may have annoyed during his tenure.
“To our president, wherever you are, it is clear that there is a difference of opinion between me and you.
“But I want to assure you and the entire nation that I have nothing personal against you. Why should I fight you? I am not a politician and I don’t hold brief for any politician,” Maraga said.
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The CJ said although he did not achieve everything he wanted, he is leaving behind a bold and strong Judiciary.
But even as he asked for forgiveness, Justice Maraga maintained that the president is out of order for refusing to appoint 41 judges nominated by the Judicial Service Commission.
Maraga said if the president has any integrity questions based on facts against the 41 judges, he should appoint them then petition the JSC to investigate their conduct and recommend their removal in accordance with the Constitution.
“The president has no residual or legal power to refuse appointing the judges. He has disobeyed three court orders and cannot cherry pick the ones he wants.
“We cannot allow presidential mischief in appointing judges as that will return us to the dark old days,” Maraga said.
On the constitutional changes proposed under the Building Bridges Initiative, the CJ asked Kenyans to reflect on those touching on the Judiciary and whether the proposed changes will strengthen or weaken the institution.
But even as the CJ accused the Executive of frustrating him and the Judiciary, President Kenyatta, in his speech read by Solicitor General Kennedy Ogeto, claimed that it is the Judiciary that is frustrating the government by issuing court orders to stop projects.
According to the president, many investors have been scared away from the country due to interference and uncertainty of court cases that take long to determine.
“Judicial independence does not mean isolation. We are all one government and the public expects us to deliver. While I appreciate everyone has a right to file a case, the public interest should not be used to advance personal interests with court injunctions which scare away investors,” said Uhuru.
On the State of the Judiciary and Administration of Justice Report, Maraga said the Judiciary has done well despite the challenges on budgetary cuts and inadequate personnel and managed to increase case clearance rate from 42 per cent in October 2016 when he assumed office to 97 per cent currently.
“The Judiciary is unable to cope with the rising numbers of cases and without increasing the number of human resources, it will remain a pipe dream for us to meet our targets of settling disputes,” Maraga said.
The CJ urged the public to explore alternative dispute-resolution mechanisms, disclosing that the Judiciary had referred disputes worth Sh13.5 billion to arbitration in the last one year, out which those involving Sh11.5 billion have been resolved.
He said that if Kenyans were to realise an effective Judiciary, then the government should allocate 3.5 per cent of the budget to the institution and between Sh5 billion and Sh10 billion for development of courts in every region.
Justice Maraga is set to go on terminal leave on December 15 before he retires on January 12, 2021, upon attaining the age of 70.