The war between Chief Justice David Maraga and President Uhuru Kenya over a directive on the organisation of government has spilled into court.
Justice Maraga publicly criticised the president after the release of Executive Order No 1 of 2020, claiming that the Head of State had illegally altered the Judiciary’s organisational structure.
Following the CJ’s outcry, the Law Society of Kenya (LSK) has rushed to court seeking to quash Uhuru’s directive on the basis that it was done without consultation.
In a claim filed by lawyers Manwa Hosea and Arnold Ochieng’ before Justice James Makau, the LSK claims that the May 11 order contravenes the Constitution by eroding the Judiciary’s independence.
According to the LSK, tribunals that ought to be under the Judiciary have been assigned to various government departments and ministries.
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The lawyers’ body also asserts that the Judiciary, which is one of the three arms of government, has been lowered to the level of a ministry or a department.
LSK chief executive Mercy Wambua (pictured), in her supporting affidavit, argues that the president can only interfere with the functions of various ministries, but should keep off the Judiciary and the Legislature.
“It is unconstitutional for the President of the Republic of Kenya to purport to organise government and set out the Judiciary, commissions and independent offices as institutions under, or functions of ministries, government departments and other constitutional bodies,” says Wambua.
Head of Public Service Joseph Kinyua and Attorney General Kihara Kariuki have been named as respondents.
“The above restructuring of the Judiciary and placing of the various tribunals and the Judicial Service Commission under various ministries and State departments is a threat to judicial functions and financial independence,” reads the LSK’s plaint.
On June 9, Maraga addressed the nation where he accused Uhuru of disregarding court orders on the appointment of 41 judges nominated by the Judicial Service Commission last year.
The head of the Judiciary has previously argued against budget cuts that hamper court operations. The CJ had also repeatedly complained of being undermined by the government and threatened to boycott some State functions.
But Uhuru has stuck to his guns and insisted that he will not appoint judges who have been found to have integrity issues.
This is despite orders by the High Court that he should conclude the process within 14 days.
The High Court has set July 30 as the date to settle whether to bypass the president and have the nominees occupy various courts without taking the oath of office.
Lawyer Adrian Kamotho wants the court to make a similar finding to one that allowed Court of Appeal Judge Mohamed Warsame to serve as a member of the Judicial Service Commission despite not being appointed by the president.