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Judiciary independence an excuse for graft, Marete tells interviewing panel

By Patrick Vidija | April 15th 2021

Justice David Njagi Marete arrives at the Supreme Court building to be interviewed for the position of Chief Justice.[Collins Kweyu, Standard]

Justice David Njagi Marete has dismissed claims that the Judiciary is under siege from external forces.

Marete who was appearing before the Judicial Service Commission vetting panel for the position of Chief Justice said for the 35 years he has been in the legal profession, he has not seen any external forces stumbling on the independence of the Judiciary.

He said instead, it is the Judiciary itself to blame the judiciary for acting in cahoots with certain people to create non-independence scenes.

Marete, who is seeking to become the next Chief Justice, was responding to questions from Attorney General Kihara Kariuki on whether the Judiciary is independent.

"I can confidently say the Judiciary is and has always been independent. We can be participants in non-independence when we create scenes that stumble on the same independence," he said.

He said the courts have handled sensitive cases including the nullification of presidential elections and the presiding judges are still alive.

He said if the Judiciary was not independent, such judges would have gone to exile in fear of their lives.

Marete told the vetting panel that for years the Judiciary had been running away from matters of accountability in the pretext of independence.

"Judicial independence has been overplayed. Accountability must always be part of the system. We cannot dodge matters of accountability in the pretext of independence," Marete said.

He said the perception that the Judiciary is not independent was brought about when performance contracting was introduced.

"The issue of performance contracting has always been resisted but we forget that we have an employer who has invested in us and must get results," he said.

Marete said former Chief Justices Willy Mutunga and David Maraga laid the ground for the transformative framework and as a result, any Chief Justice coming after them must ensure that every judicial officer is gauged on what they produce.

He said though he was not aware of the current Supreme Court's strategic plan and the period it covers, given a chance to be the next CJ he would work hard to streamline administrative structures, human resource and source for more funding to run judicial activities.

Marete said the Judiciary has not been able to effectively fight corruption because corruption cases are regarded as personalised affairs.

While referring to a famous quote 'Constitution without Constitutionalism', Marete said it is disheartening that judicial officers collude to create scenarios that will depict the Judiciary to appear as if it is under threat.

"My lords, we cannot serve justice in these corruption cases while we are doing things under the table. It is so unfair and immoral that judicial officers have been reduced to cheap bribery in these cases," he said.

Marete said if he becomes the CJ he would ensure there was strict surveillance and firmly deal with any cases that will be reported.

"Under my tenure corruption cases should be handled within 12 months. Within the next three years, I will ensure all pending corruption cases are cleared," he said.

He said if he takes over, he would immediately deal with the issue of appointing the 41 judges.

Marete was among the first judges to be appointed to the newly created Employment and Labour Relations Court (ELRC) under the 2010 Constitution.

The 65-year-old Judge is remembered for coming to the rescue of civil servants seeking elective positions in 2017 when he declared election laws, which required them to resign six months before the election, invalid and unconstitutional.

Born in 1959 in Tharaka Nithi, Marete has a Masters of Law from the University of Nairobi (2007) and a Bachelor of Laws from the same university (1984).

He survived a motion to remove him from the Judiciary last year after spending five months on suspension.

This followed complaints by Kenya Tea Growers Association, Unilever Limited, Kakuzi Limited, James Finlay Limited and Siret Limited, which accused the judge of gross misconduct, bias, impartiality and breach of the Constitution in handling a dispute they had with the Kenya Plantations and Agricultural Workers Union.

The firms alleged that while aware the case had been handled by another judge from the same division of ELRC, Marete went ahead and issued orders which had the effect of setting aside those of a fellow judge.

JSC was satisfied the claims constituted gross misconduct and recommended to the president to suspend him and form a tribunal to investigate his conduct.

In his defense, Marete denied the claims, arguing the orders related to two different applications and accused JSC of being unfair in its decision. He said the commission failed to take into consideration the circumstances under which he issued the orders.

Last September, the tribunal appointed to investigate him cleared him of the charges, ruling the allegations were not proved. It also recommended to the president reinstate him.

The tribunal said JSC shouldn’t have relied on the claims to suggest suspension of the judge, as they related to his work as a judicial officer.

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