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Full in-tray awaits next CJ as Maraga proceeds on leave ahead of his retirement

NAIROBI
By Everlyne Kwamboka | December 12th 2020

A full in-tray awaits Chief Justice David Maraga’s successor who is expected to carry the judicial reforms mantle to the next level.

It is an overflowing tray that he leaves behind as a result of what he terms as interference with the Judiciary’s independence, disobedience of court orders and refusal to grant the institution financial autonomy.

The pending work includes a backlog of cases, construction of court buildings, appointments of benches to handle some of the matters in court, appointment of judges and the full rollout of some of the Judiciary systems.

Priority on the new CJ’s (pictured) list, according to Homa Bay Town MP Peter Kaluma who sits in the National Assembly’s Justice and Legal Affairs Committee (JLAC), will be to mend the relationship between the Judiciary, Executive and Parliament.

“The CJ did very well in defending the Judiciary but the relationship with the Executive suffered. If mended, all the pending issues such as appointment of judges and construction of court buildings will fall into place,” he said.

It is a relationship that has had its ups and downs, with the Judiciary threatening to close some of its courts due to lack of funds and financial autonomy.

When in September 2017 the Supreme Court nullified the presidential election, President Uhuru Kenyatta threatened to “revisit”, and the following financial year, there was a reduction of the development vote of the Judiciary’s budget from Sh2.1 billion to a paltry Sh50 million.

It is a situation that has left most of the Government-funded court building constructions pending, yet most of the ones funded by the World Bank have been completed and launched.

The Standard learnt that Parliament, through the JLAC, was forced to intervene for the Judiciary to have development funds released.

This saw the Judicial Service Commission (JSC) establish a construction department within the Judiciary to avert the proposal by the Executive to have all the development funds on construction of court buildings moved to the Ministry of Public Works.

Kaluma said the issue of complaints against judges still pending before the JSC should be a matter of great concern to the new CJ.

On the issue of cases forwarded to Maraga, who is proceeding on terminal leave today, to appoint benches to hear and determine, Kaluma said it is not the CJ’s mandate to do so, but that of the court’s president or presiding judges.

Kaluma said the CJ is only required to constitute benches to hear matters before the Supreme Court where he is the president and not Court of Appeal of High Court.

Maraga, who assumed office on October 19, 2016, had promised the nation to clear all the backlog of cases aged five years and above during his tenure. However, he now leaves behind 35,359 of such cases.

But even with the achievements made by the CJ who introduced the Judiciary blueprint to guide service delivery during his tenure, Maraga said new matters in this bracket arose as a result of lack of human resource.

The CJ inherited more than 201,206 cases that he cleared within two years of his term.

While presenting the state of the Judiciary and the administration justice report for 2019-2010, he said without increasing the human resource capacity in the number of judges and judicial officers, the elimination of case backlog will remain a pipe dream.

“I want to state that in spite of various barricades placed on its path, but imbued by the commands of the new Constitution, the Judiciary has performed substantially well since 2010, when the new Constitution was promulgated,” said Maraga.

The JSC had forwarded the names of 41 judges to President Uhuru Kenyatta to gazette, a list that now stands at 40 following the death of lawyer Harrison Okeche in October.

Article 166(b) of the Constitution provides that the president shall appoint judges in accordance with the recommendation of the JSC.

“This failure to appoint the 41 recommended individuals is clear interference with the independence of the Judiciary with the result that backlogs in our courts have continued to soar. I continue to urge the President to appoint those judges without any further unnecessary delay,” Maraga said.

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