President no mere rubber stamp for JSC, AG tells Maraga over judges’ appointment

AG answers Chief Justice David Maraga over claims of frustrations from the Executive.

The Attorney-General Kihara Kariuki has defended the Executive from the blames of Chief Justice David Maraga over the appointment of 41 judges currently in a stalemate.

The AG (pictured) told off the Chief Justice just a day after the latter signalled President Uhuru Kenyatta for what he termed as unresponsive attitude meant to frustrate the courts, characterised by the rampant disregard of court orders.

The CJ yesterday cut a lonely figure as he addressed a press conference which he referred to as the last resort to address State House, which according to him, had become a law unto itself.

“This disregard of court orders by the president is part of the pattern by the Executive. I must remind the president that he swore to defend the Constitution and the laws of Kenya, he must demonstrate his respect for the law by complying with court orders,” said Maraga.

It is that address that stirred up emotions and debate amongst Kenyans prompting a rejoinder from the AG, the principal legal advisor of the President.

While responding to the Chief Justice on the issue of judges appointment, the AG defended the President saying that the law does not assign him the role of a ‘rubber stamp’ to accept all the nominees of the Judicial Service Commission without questioning their integrity.

AG Kihara argued that there is some underlying misunderstanding of the legal role of the President in the appointment of judges versus the recommendations of the JSC.

“The Executive does not believe that the Constitution intended that His Excellency the President shall merely rubberstamp whatever recommendation is made by the Judicial Service Commission, especially where effecting such recommendations would undermine constitutional values, “the AG noted in a press statement.

The AG argued that the President demonstrated his knack to obey the Constitution by heeding to the information which led to his questioning of the credibility of some of the nominees. He said that any attempt to endorse the whole list would have meant that the

President would have disregarded some provisions of the law on credibility.

He absolved the President of the blame in the backlog of cases in the Judiciary by faulting Chief Justice and accusing him of laxity in prosecuting corruption cases.

“…the Judiciary has historically, and especially under his leadership suffered from case backlogs largely caused by internal factors. In recent years, for example, His Excellency the President has had to lament about the failure of Judiciary’s leadership in handling corruption cases, many of which are delayed in the courts,” the AG said.

“…the war on corruption has been undermined significantly by the failure of Judiciary’s leadership, in unlocking critical cases some of which involve individuals with influential positions in the echelons of the judicial system.”

The AG also said that he could not file appeals on the issue of appointment of judges because such would only happen after he had been furnished with the “requisite court documents” such as typed records of court proceedings.

Court orders

The blame game pitting two arms of government also touches multiple court orders which Justice Maraga said are yet to be complied with by the Executive.

Emerging on this issue is the claim by the CJ that the Executive disobeyed court orders and proceeded to illegally evict over 1,000 families in Kariobangi, Nairobi. This, the AG branded as an unsubstantiated allegation.

He also stated that the CJ meddled in an issue before the court and without using concrete facts pre-empted the outcomes of events threatening the realisation of justice.

“In making unsubstantiated emotional public pronouncements…The Honourable Chief Justice is effectively, and regrettably so, preempting the outcome of ongoing court cases in which parties have taken fiercely divergent views including on the facts that Honourable Chief Justice is placing on record,” the AG stated.

Pending bills

At his press conference, Justice Maraga addressed the President urging him to instruct the AG to file all the court orders for the responses.

The CJ decried lack of settlement of compensation for accident victims with paraplegic injuries.

But while responding to this, the AG claimed that the government had paid Sh1.5 billion since July 2019 towards such pending bills and that the remaining amount is only Sh113 million.

He argued that the Executive had to scrutinise the claims to avoid losing money in dubious ways. For example, he claimed that the Executive in the past has had to appeal some astronomical amounts awarded by the court. And, that in some cases, claims are not backed by court files.

The friction between the Judiciary and the Executive has degenerated into a full-blown tiff with blame games. Last year, the Chief Justice complained of bad treatment in state functions and Executive’s failure to release funds for the courts. In a separate incident on June 4, 2020, the CJ issued an order countering President’s Executive Order which streamlined the functions of the Office of the President.

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