Former Chief Justice David Maraga upped the pressure on President Uhuru Kenyatta to swear in the six judges, warning that the country risked sliding into state of anarchy and lawlessness.
In an exclusive interview with KTN yesterday, Maraga joined the swell of those describing President Kenyatta’s move against the judges as a gross violation of the Constitution. He said ideally, this should trigger his impeachment by Members of Parliament.
Barely months into retirement, Maraga’s spoke a day after his predecessor Willy Mutunga issued a public dress-down on the President over the same matter. Maraga claimed the latest trend by the Executive to ignore court orders was setting dangerous precedence for the country and could flip it into a banana republic if not checked.
Maraga said the public has to pile pressure on the President to appoint the judges – whose nominations he rejected – to stop further abuse of power.
“When a situation gets bad, people need to be frank and bold because if we allow him to continue; it will bring more problems to this country. People are required to work as required by the law,” said Maraga.
“If we continue to operate like this, we would not have the Judiciary. Judges will be making decisions based on what the Executive wants,” he added.
He said that the current state has been made worse by the opposition that has since gone to bed with the Government, providing the President “with the audacity to act this way”. He said that the opposition should be in the forefront in castigating the President for going against the rule of law.
Uhuru last week turned down the nominations of High Court Justices Joel Ngugi, George Odunga, Aggrey Muchelule and Weldon Korir to the Appellate court “for failing to meet the required threshold”.
Registrar of the High Court Judith Omange and Chief Magistrate Evans Makori, who had been nominated to the Environment and Lands Court also had their nominations rejected by the President sparking fury from certain quarters.
Maraga said that the has exposed the judges to “public lynching” and is likely to ruin their careers as they will be perceived by the public as corrupt.
He said there were push even during her tenure to swear in judges with “no integrity issues” and leave the others, a suggestion that he flatly rejected as it could have set in a precedent where the President would only pick people he “likes their faces” to serve in the judiciary.
“Even before I left office there were suggestions that we swear in those who did not have what they called integrity issues; issues that were never given to us, and we go on because at the time I was complaining of backlog. But I said if we allow such selection we would be violating the constitution,” he said.
“If allowed that I would be violating the constitution … I would have set a very bad precedent. If a set that precedent, I would have given the president a free hand to choose who should be appointment,” he explained.
He said that decision has exposed the judges to public ridicule and perception that they are corrupt and cannot handle cases based on evidence.
“Look, what has this swearing-in done; this is public lynching of the six judges left out. Do they continue serving? When people go before them the first thing is that these judges have integrity issues. When somebody losses a case before that judge he will come up with frivolous case that the judge has been bribed. You are literally ruining the careers of these judges, and totally ruining their lives and their families,” he went on.
He disclosed that some of the individuals initially listed as having integrity were included among those who were appointed while those who did not have “integrity issues” had their nominations rejected.
“I confirm that, the names have changed, those who were said to have issues some have been added to that list and others removed. If it was a bona fide allegations, why is this shift?” he posed.
He said that the President has no powers to cherry pick whom he wants, saying that allowing the abuse to go will imply that only those perceived as friendly will serve in the judiciary.
Consequently, the ex-CJ said that Parliament should consider impeaching the President for abusing the same law he swore to uphold.
He gave an analogy of a Chief Justice that refuses to swear-in a duly elected President, saying such a CJ would be kicked out of office the following day for failing to discharge his or her duties.
“What happens if the chief justice refuses? He would be thrown out of office. The whole country would roll. That is what is supposed to happen to the president,” he said.
“It is the role of parliament to take steps and remove him if he violates the constitution. If these acts are allowed to continue we are descending into a banana republic,” he added.
He said that there is a very good procedure in handling any complaints against any judge by the Judicial Service Commission, saying that if there were any adverse reports against the six judges they should be sworn in first before the cases are looked at by the JSC.
“What have happened is that these judged have been condemned unheard. We are dealing with a very serious issues that the law has a very elaborate procedure,” he explained.
He explained that whenever JSC conducts interviews it writes to all institutions including National Intelligence Service (NIS) for reports on each and every candidate.
Maraga said the President cannot, therefore, come around and say that he has some intelligence report that some of the judges have integrity issues.
He said allowing the President to get away with that excuse would imply that you can only serve in the judiciary if the president “likes your face”.
“That issue arose when we were doing the interviews. I wrote and the letter I received was that there are an integrity issues on so and so and I asked them to provide the details. But they said that they can’t give you the details,” he explained.
“So on the basis of that we were supposed to condemn the judges unheard. They did not give us the particulars, so as JSC we passed them for appointment. It came but were not given the particulars. They could have been easily frivolous,” he added.
He said the president’s role is ceremonial in the appointment of the judges, citing a section of the constitution that states that the president shall appoint judges in accordance with the recommendations by the JSC.
“It means that President cannot change the list. The president has no leeway. The constitution binds the President’s hands,” he added.
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