A threat by President Uhuru Kenyatta to Chief Justice David Maraga forced the CJ to make radical changes in the Judiciary yesterday.
Two weeks ago during the anti-corruption conference at Bomas, the President told Maraga that if he did not make changes then “we will help you do so”.
At the conference, Maraga came under intense public pressure to rein in judicial officers seen as stumbling blocks in the fight against corruption. Virtually all senior government officials and ODM leader Raila Odinga accused the courts of giving suspects minimal bails, issuing anticipatory arrests orders and giving injunctions arbitrarily.
But Maraga put up a robust defence of the Judiciary, insisting that the arm of government he leads was independent and judges will always abide by the rule of law. However, President Kenyatta laughed off the excuses, telling the CJ to put his house in order if he was serious about the war on corruption or someone would do it for him. Yesterday, Maraga announced a major shuffle of key judges in a move likely to be interpreted as bowing to pressure from the Executive.
Among those moved is Constitutional Judge Chacha Mwita. He has been transferred to the High Court in Kajiado. Mwita will be replaced by Justice Welson Korir who was in Malindi. A letter seen by the Star dated February 1 and signed by the CJ says the decision to transfer her was reached after a needs assessment was undertaken.
“Following an assessment of the needs and resources of the Judiciary, it has become necessary to make a few transfers at this time,” the letter reads. The letter by Maraga indicated that the transfers will take effect on March 1.
Also moved from the Constitutional and Human Rights Division is Justice Wilfrida Okwany, who will take over from Justice Aaron Makau at the Commercial and Tax Division.
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Justice Reuben Nyakundi, who has been the presiding judge at the High Court in Kajiado, has been moved to the High Court in Malindi to replace Korir. It has not escaped the curious eye of observers that Mwita and Okwany have been handling major cases that have rubbed the Executive the wrong way.
Mwita has made multiple decisions that have left the Executive with an egg on its face after bullying its way outside the constitutional order. Some of these have related to the Judicial Service Commission. Others include the controversial deportation of lawyer Miguna Miguna and the criminal case facing Deputy Chief Justice Philomena Mwilu.
Last month, Mwita ruled that President Uhuru Kenyatta violated the Constitution by failing to appoint Justice Mohamed Warsame to the Judicial Service Commission over 10 months after he was elected by his colleagues at the Court of Appeal. Justice Mwita said the decision by the President not to gazette Warsame was unconstitutional and unlawful.
In mid-December last year, Mwita ordered Interior CS Fred Matiang’i and Immigration PS Gordon Kihalangwa to pay lawyer Miguna Miguna Sh7.2 million for unlawfully deporting him to Canada and breaking his Runda house.
The judge ruled that Miguna’s rights were violated and the two senior state officials were held personally liable for their actions, adding that taxpayers should not pay for the public officials’ individual misdeeds. It was Mwita who in August last year suspended criminal charges against Deputy Chief Justice Mwilu.
Mwita said the petition raises constitutional issues that need to be addressed, holding that the charges Mwilu faces arose out of a commercial dispute. He said that this being the case, the court needed to determine whether a commercial dispute could amount to a criminal charge.
The Executive complained at the time that the Judiciary was seeking to protect one of their own from facing criminal charges. In February last year, Mwita made a ruling that automatically gave Auditor General Edward Ouko the go-ahead to audit the billions of shillings annually allocated to the military and other security agencies.
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In the landmark ruling, Mwita declared Section 40 of the Public Audit Act No 34, 2015, and others as inconsistent with constitutional provisions.
In 2017, just before the repeat elections, the Jubilee side in Parliament forced changes to the elections laws that were later challenged in court. The case fell in the hands of Justice Mwita, who, in December of the same year, suspended Elections Laws, 2017, pending conclusion of the case challenging their legality.
In his short ruling, Mwita said the suspension would remain until March 16 last year, when he would deliver a judgment. In April last year, he declared as unconstitutional some sections of the controversial Election Laws that were hurriedly passed by Jubilee MPs days to the October 26 poll.
His colleague in the same division, Justice Okwany, has also made some uncomfortable rulings against the Executive.
Last year, she issued temporary orders restraining the DCI and Inspector General of Police from posting suspects’ booking photographs, pending hearing and determination of the petition. This order has largely been ignored.
It was Justice Okwany who also lifted the ban on the lesbian based movie Rafiki after the government banned it from being screened in the country.
Last month, she declared the recruitment of commissioners to the National Cohesion and Integration Commission by Parliament as unconstitutional. The judge ruled that any appointment resulting from the nominations by Parliament was null and void.
In July last year, in a move Treasury said would cripple revenue collection, Justice Okwany suspended the implementation of excise duty introduced in Finance Bill,2018.
In her ruling, she said duty on money transferred by banks is an important issue that cannot be the subject of guesswork or individual interpretation by the lenders.
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Yesterday, lawyer Ahmednassir Abdullahi tweeted that the CJ is trying to appease the executive and is dismantling the constitutional and judicial review division of the high court.
“Breaking news... CJ Maraga in a move seen by observers to appease the executive dismantles the constitutional and human rights division and other divisions of the high court and appoints judges acceptable to the executive...more to follow shortly,” tweeted the lawyer.
Just last week, Gatundu South MP Moses Kuria in an opinion piece published in the Star argued that Mwita had arrogated to himself the power to appoint Warsame as a JSC commissioner.
“This is state capture by the Judiciary and a serious affront to the rule of law and separation of powers. It is an issue that Justice David Kenani Maraga has to address if he expects the rest of us to respect the Judiciary,” Kuria said.
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