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Why i think the independence of autonomous institutions is at stake

By Sibamokey Marwan | Sep 20th 2017 | 3 min read

On Tuesday 19 September,  the Chief Justice and the president of the Supreme court of Kenya Justice David Maraga came out gun blazing to "defend the independence of the Judiciary" following demonstrations by a section of Jubilee supporters against Justice Mwilu and Justice Isaac Lenaola who they believe orchestrated and executed a well choreographed Judicial coup together with opposition politicians meant to subvert the will of the Kenyan people. 

Before I delve into that matter, I wish to make it clear that the constitution of Kenya guarantees the independence of the Judiciary and provides that the Judiciary shall be subject only to the constitution and the law, and shall not be subject to the control of any person or authority. The constitution contemplates complete independence, not only from the Executive and the Legislature, but also from opposition politicians, NGOs, International advocacy and influence peddling groups, or business and social partners of judicial officers. 

I also wish to state that just like other state officers the Chief Justice is not immune to petition and criticism. He should therefore at all times be accountable for his actions. 

On that note, it is my humble view that our Judiciary is no longer independent. It is held hostage by a group of civil society organizations, the Kenyan opposition and the Chief Justice David Maraga. There are two main reasons that inform my notion. 

1. When Hon. Raila Odinga literally demanded that the court must redeem itself by ruling in his favour just before the start of the presidential petition, it was universally construed as coercing the court and bullying it to "tore the line." However, we did not see the CJ coming out to "defend the Judiciary from intimidations". As if this is not enough, he seems to have given into the demands and overturned the decision of 15 million Kenyans on the basis of "forms with no signatures and security features". When Jubilee supporters picket and petition the Judicial service commission to investigate allegations on Judges, the CJ calls a press conference and threatens the demonstrators and politicians he thinks are behind them. 

2. The Judges in question are human. Accusations against them can either be true or unfounded. As the head of the Judiciary, I at least expected the Supreme Court President to assure the picketing Kenyans that their grievances will be investigated and root of the matter reached. Maraga in his wisdom saw all the demos as "intimidations and threat to the Judicial independence". This is not only a show of partiality but affirms the fact that the CJ is in bed with the opposition. The section of Kenyans who were demonstrating seem not to have any right to submit grievances against the Judiciary. 

Lest we forget, Issack Hassan who led IEBC Commissioners had to leave office because Raila lost the 2013 presidential election. Simple. It goes without question that should Raila have won the election, the commissioners would be in office even today. The consequences of the 2017 election are also apparent. A section of the IEBC commissioners and secretariat or all of them will have to pay for Raila's lose. 

In this regard, it is my conviction that the independence of our autonomous institutions is at stake. They will always be forced to listen to Raila Odinga if he gets his way this time. Just recently, the NASA leader authoritatively said "I am not saying I will boycott election, I am saying there is no election if the NASA demands are not met." That literally means that he is the one to say when the elections should be and if there will be elections in the first place, and not IEBC. 

It is undeniable that Hon. Raila Odinga immensely contributed to the development of our democracy and growth of constitutional institutions but he seems to be reverting his achievements because he was not "rewarded".

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