Former Chief Justice David Maraga now says President Uhuru Kenyatta cast aspersions on the integrity of six JSC nominees without backing his claims with evidence.
Maraga also says the president turned down his bookings for a meeting with and the speakers of both houses to deliberate on the issues of separation of powers.
Maraga said in an exclusive interview with KTN News on Wednesday that despite the President saying he left out the six over [alleged] integrity issues, he (Kenyatta) did not furnish the ex-CJ or the JSC with any proof.
The Head of State had previously said the National Intelligence Service (NIS) conducted a background search on certain judges who had been listed for promotion, and that integrity concerns were raised about some of them.
Maraga now says NIS has no role in vetting judges, and that the President erred in his decision to reject six JSC nominees.
“The President cannot come and say he has intelligence reports that these people have integrity issues and expect that we take his word for it,” said Maraga.
The former Chief Justice said before his retirement in January 2021, he unsuccessfully asked the president's office to furnish him or the Judicial Service Commission (JSC) with information suggesting some of the judges listed for promotion had questionable integrity.
“I raised that issue when I was the CJ. I wrote to the President seeking answers and was told: ‘in the nature [under which] we conduct our business, we can’t give you those details,” said the ex-CJ.
Maraga now says the President’s s rejection of the judges risks jeopardising their careers.
“In the eyes of the public, these are corrupt judges because that is the analogy the President has put out there,” he said, adding that the fate of the omitted JSC nominees was sealed without being given a right of hearing.
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Maraga said if Kenyatta has reservations about the six nominees’ suitability, he should forward them to the JSC for interrogation and subsequent appropriate action.
The former CJ observed that the Head of State has no powers to cherry-pick JSC nominees.
He quoted Article 166 (b) of the Kenyan Constitution, which states the President shall appoint the judges in accordance with the recommendation of the JSC.
Maraga further accused Kenyatta of consulting and listening to himself only, yet on certain issues the Judiciary has, rightfully so, pronounced itself on them.
“With all the court orders issued, he is still saying as long as he is the President, he is not going to take the easy way. The law is very clear. When the court has made a decision, with the exception of a stay order, everyone has to comply,” he said.
On Tuesday, June 8 Maraga’s predecessor, Willy Mutunga, wrote an open letter to the President asking him to appoint the remaining six judges, saying “State offices are not an individual’s property”.
"That the President has finally gazetted all the advocates recommended two years ago speaks to an exercise of power that is egregious, reckless, and insensitive. It is most disturbing the President's decision to omit the names of six judges and judicial officers from the list," said Mutunga in his bare-knuckle address.
Maraga now says he is in agreement with his predecessor word for word.
“Rais hana mamlaka ya kusema ataajiri huyu na awache huyu. Tukikubali aendlee hivi, italeta shida nchini. (The President has no powers to choose whom he will hire or reject from a list forwarded to him by the JSC. If we allow him to operate outside the law, then we’ll have major problems moving forward).”
The former Chief Justice said he was not in a position to speak authoritatively on the role played by his successor, Martha Koome, in the appointment of 34 out of 40 judges listed for promotion.
“Her attending [of] the judges’ swearing-in at State House, Nairobi is neither here nor there. Rather, look at the awkward position she found herself in, regarding not knowing about the appointments,” he said.
The ex-CJ has urged Kenyans to allow Koome to dispense her duties as the Judiciary chief officer because “it’s now her time”.
Martha Koome recently defended herself against criticism over the partial appointments of judges, saying she took over as CJ when the judges' debate had already begun simmering.
“I wish to state that I had no part to play in this Constitutional process which was undertaken almost two years ago. Upon forwarding the names to the President, the Chief Justice and the JSC became functus officio (ceased to have any role),” she said in a press statement dated June 4, a day after Kenyatta gazetted the appointment of 34 out of 40 judges.
She, however, said she was optimistic the President would reconsider his decision of omitting the six, citing 2014 when the JSC recommended 25 names for appointment, but the President first gave the green light to 11 judges, and then 14 others followed months later.
The six names left out in Uhuru’s June 3 appointments are Justices Weldon Korir, Joel Ngugi, George Odunga and Aggrey Muchelule, High Court Registrar Judith Omange, and Chief Magistrate Elvis Makori.
Accusing the president of violating the constitution, Maraga said Parliament had the right to impeach a president who violated the grand law.