The recent full throttle bare knuckle, below the belt personal attacks on Kenya’s Chief Justice David Maraga epitomizes the executive’s brazen power grab of the Judiciary. Word on the street is that these attacks are a smear campaign orchestrated and choreographed by State House at the behest of President Kenyatta. There is plenty of credence that they are retaliatory against the CJ going by multiple known indicators not the least of which are the fact that the attacks have surfaced on the heels of the Chief Justice publicly calling out the President for failing to confirm judicial nominees and that the president has had it for Justice Maraga since the nullification of his “reelection” in 2017. Kenyans are not lost to the threats Kenyatta and his Deputy William Ruto, then seething with rage for the historic ruling, made against Chief Justice Maraga, promising to “REVISIT” (revenge) the ruling. Three years down evidently this is one campaign promise the President has kept, held on to his grudge and made good of his threats against the Chief Justice both professionally and personally and it appears the President’s team has ratchetted its efforts against the CJ. The most recent smear was a poorly stage managed smear campaign that literary fell flat on its face. A woman, a Ms. Kwamboka Onyancha, made an “Apollo Amateur Day” acting debut that lasted a few minutes with the camera crew strategically in tow in place hollering with a phony wail that the CJ was a deadbeat dad to her 6 year old child. Her performance speaks for itself, it is comic relief for its entertainment and nuisance but for its smear of the CJ. I mean you be the judge.
Two weeks prior, immediately following the CJ’s presser calling out Kenyatta for failing to appoint nominees to the Bench, several videos surfaced on multiple media platforms casting the CJ as a philanderer who had affairs with judges. All these videos and performances have one common link, State House. These attacks are character assassination meant to besmirch his reputation and by extension the judiciary as a whole. They are cheap, underhanded, libelous, inflammatory, despicable, tasteless, juvenile, abhorrent, uncalled for and need to STOP. Kenya’s not the president’s personal estate to run as he pleases nor is the Judiciary an appendage of the Presidency. The President must embrace pragmatism and seek practical solutions that advance the country’s welfare and not just his own.
Kenyatta, who appears very comfortable in his role as president, perhaps too comfortable given this late stage of his presidency, has been on a power consolidation mission. There’s practically no opposition or legislature to speak of in Kenya, they are appendages of the executive. They are beholden to and answer to President Kenyatta. He now has sights turned on the Judiciary and absent anyone to stand up to him, indeed the country will soon become a one party state operating at the whims of the President. We cannot let that happen. Chief Justice David Maraga has led the charge by standing up to the president and he’s paying for it. Knowing the man, he’s resolute and will stand his ground, he will not capitulate to the dictates of the executive.
The Judiciary Must Be Supported, Not Undermined – Last week’s conviction and sentencing of Sirisia MP John Waluke and his accomplice Grace Wakhungu for mega corruption underscores the judiciary’s critical role in the fight against corruption and a clear testimony that the fight against corruption can be won if the Judiciary is supported, not undermined. Evil triumphs when good men and women do nothing to stop it and this development should be a loud and clear message that the judiciary will deliver on its mandate if properly facilitated. And so it is in this context that the presser by Chief Justice David Maraga decrying President Uhuru Kenyatta’s treatment of the judiciary was timely and eminently justified. Chief Justice Maraga, as head of the Judiciary, is at wits end with respect to the lack of support and condescension he and the judiciary that he heads have been and continue to be subjected to by President Kenyatta over the years. He needed to alert the public of the challenges this vital CO-EQUAL branch of government faces from the executive, and rightly so. One can only imagine how many other Waluke judgments would have been rendered and take a significant bite out of corruption by now but for the president’s unwillingness to do his part.
Disobeys Court Orders – It is disingenuous for the Jubilee regime to blame the Judiciary for its inability to end impunity when it is the Kenyatta government that has unrivalled notoriety for routinely disobeying court orders, too many to enumerate. The sanctimony speaks for itself and just to site a few examples from the Miguna Miguna saga where it repeatedly refused to allow him in the country, to Diaspora voting orders that have been repeatedly defied, to evictions and displacement of vulnerable populations that the courts have issued multiple specific injunctive reliefs against the government but the government ignored. He has been ordered multiple times to confirm these nominees and has adamantly refused for crying out loud. The point is the Kenyatta government has a dubious notoriety for lawlessness in the country that simply need to end.
The Process Is Broken – In fairness to President Kenyatta, he is NOT and must not be just a mere rubberstamp who simply assents to any names submitted to him by the Judicial Service Commission (JSC). The president’s role is critical in safeguarding the interests of the electorate, he’s the only elected person through whom the nominees pass before assuming office and so he’s not only entitled to vet the names but he’s duty-bound to ensure bad apples do not fall through the cracks and into the judiciary. Methinks the Judicial officers’ appointment process in Kenya is deeply flawed and backwards. Borrowing from advanced democracies such as the United States, the President should nominate judges who are vetted in Parliament and once approved (voted on) they assume office (advice and consent). Of course their backgrounds are reviewed thoroughly before they are even nominated. Kenya could benefit from such a process wherein the JSC still retains the role of background checks of potential jurists, vetting and forwarding the names to the President who then picks from the list for either direct appointment or nomination to Parliament for final approval, preferably the latter. Whatever choice, it removes any ambiguities in the process and makes it very clear that the president’s role is not just that of a rubberstamp. Ironically this is one of the constitutional follies that needs to be fixed but is completely IGNORED by the change the constitution “Building Bridges Initiative” (BBI) brigade headed by both President Kenyatta and former Prime Minister Raila Odinga. They should streamline this process.
The Executive Most Corrupt –President Kenyatta has a proclivity of scapegoating the Judiciary for corruption, primarily for failing to convict corrupt individuals and that CJ Maraga is somehow responsible. He is not. As we all know prevention is better than cure and here is the truth, whereas there is plenty of blame to go around for corruption, i.e. it permeates the entire society and all three arms of government, the irony in all this is the fact that the Kenyatta led executive branch of government, going by the sheer numbers and amounts in the Trillions looted from the public, is admittedly the most corrupt of the three arms of government. Almost all if not all corruption cases, past and present that the judiciary handles are invariably against government officials in the executive branch of government. In this context Kenyatta owns corruption, not Justice Maraga. Kenyatta is on record conceding his inability to contain corruption in the country. Wittingly or unwittingly he aids and abets it. It is disingenuous that the president presiding over a government teeming with corrupt employees who are a big burden to taxpayers and the courts is blaming the courts for that which he has failed to address. Kenyatta repeatedly promised Kenyans of “lifestyle audits” of government employees starting with his number two William Ruto to flush out unexplained wealth and proceeds of corruption, he hasn’t delivered a single audit. This would be a good place to start if I were the president, mean what you say and say what you mean. You you would think that a president who has staked his legacy and reputation on ending corruption would be on the forefront of equipping the courts with the manpower and resources help him achieve his objectives, instead he has hamstrung them, ridiculed them. Kenyans are befuddled and at a loss reconciling Kenyatta’s inexplicable actions. This is the proverbial cutting the nose to spite the face by President Kenyatta. The President should not play these kinds of games with the Judiciary, especially when he depends on the judiciary to affect his own legacy.
Budgetary Cuts Sabotage The Judiciary And Undermine Rule Of Law – The Jubilee regime has systematically cut the Judiciary’s budget since 2018, disproportionately deeper than all other departments. All the while it has spent Billions for non-essential and non-value adding activities such as the travel and shuttle diplomacy campaigning for leadership roles at the African Union and at the United Nations. The government’s priorities are out of step with Kenyans’ priorities. Truth is, notwithstanding who heads it, the Judiciary is a CO-EQUAL arm of government. It is a critical arm of government that glues the country together because it is the custodian of justice, an INDEPENDENT and final arbiter of disputes and administration of justice, both civil and criminal. Undermining the judiciary undermines the rule of law. The Judiciary’s role ensures proper checks and balances and prevents the country from descending into lawlessness and anarchy. Kenyatta must be alive to the fact that his maltreatment of the Judiciary will always be attached to his reaction following the nullification of his “reelection”. The ruling jolted the country and expanded international acclaim for Kenya’s judiciary as an independent arm of government. However, it appears Kenyatta did not get over the ruling, he became uncharacteristically resentful toward the Judiciary, particularly Justice Maraga and he seems to be still holding a grudge against the Chief Justice. He slashed the Judiciary’s budget, effectively clogging the courts with years’ worth backlog of cases and crippling the judiciary’s ability to render rulings.
Guilty By Association Unfair Punishment Of Nominees – Due process dictates that nobody should be convicted or deprived unheard for the sins of another. This should have weighed on the president in his decision to sit on the nominees. Instead, at his sole discretion, he arbitrarily chose to hold all the nominees and by extension the country hostage while simultaneously blamed the Judiciary of, among other raft of charges, laxity and corruption. In this instance the Judicial Service Commission (JSC) submitted 41 nominees to President Kenyatta for formal appointment/confirmation to fill vacant positions in the critically understaffed courts. JSC, headed by the Chief Justice, followed the flawed law in vetting candidates some of whom are already serving as judicial officers. That was several months ago, last year actually. Kenyatta REFUSED to approve the nominees and has sat on them with the excuse that he has information that “SOME” of the nominees are of questionable character. He never disclosed to the JSC who they are or what the questionable character was. His role was simple, to approve the “Clean” nominees and reject the “tainted” ones so the clean nominees can go to work and mitigate the case backlog in the courts. If he has problems with “SOME” nominees, by not approving the “clean” ones he has in effect convicted the clean nominees simply because they are in the same pool as the questionable ones, that is guilty by association. He is punishing the others without due process. He has denied them and continues to deny them, without a just cause, opportunities they have rightly earned and are entitled to, i.e. to serve, advance and earn livelihoods. It is abuse of office for the president or anyone else for that matter to do that and it needs to stop.
Kenyatta Must Understand & Appreciate The Judicial Process – Truth is the Supreme Court is an appellate Court albeit the highest in the land. It has limited original jurisdiction on certain matters such as Presidential election petitions. The Chief Justice does not sit in each opinion or judgment rendered by each court in the country, it is not only impractical to do so but also would be counterintuitive to their independence. Nonetheless, it is true that in balance Kenyan courts are notorious in making flawed judgments many of them due to sheer incompetence of judges and influenced by corruption and bribes but that’s why we have a remedial process by way of the JSC where errant judges can be dealt with as well as a hierarchical judicial system where appeals can and are often filed against judgments all the way to the Supreme Court. Therefore, it is disingenuous to blame the Chief Justice for decisions made by others. What we can do is hold the CJ’s feet to the fire to take remedial action once he’s notified of bad conduct of judicial officers. Nobody has accused him of failing to take action against judicial officers that he’s been made aware of their wrongdoing, no such record exists.
Maraga Is Incorruptible – Blaming CJ Maraga for Corruption at the Judiciary is grossly MISDIRECTED. The executive is barking at the wrong tree. Nobody can accuse him of corruption because he is not corrupt. What the executive has resorted to instead is a very despicable smear campaign to assassinate his personal character by publishing gutter press to embarrass and bring disrepute to him, wouldn’t have happened without Kenyatta’s knowledge and approval and it is not only regrettable but also shameful.
