Maraga vs Executive: How 2017 polls changed tide against Judiciary

"I will choose which state functions to attend" was one of the most telling statements Chief Justice David Maraga issued to the Executive this year.

The date was November 4 and the statement was the clearest indication that Maraga and the Judiciary were fed up with being mistreated by those who believe that they "own Kenya".

The Maraga statement was a testament that the cold war with the Executive had boiled over.

The CJ, who was accompanied by several Judiciary employees, focused his complaint on budget cuts which were hurting the delivery of justice.

But the battle between the Judiciary and the Executive started long before Maraga's November outburst.

Flashback to September 1, 2017. The Supreme Court nullified the August 8 General Election in which President Uhuru Kenyatta was declared victorious.

It was Maraga who delivered the ruling backed by four of the six apex court judges. The four found that the elections were marred by irregularities and ordered the IEBC to hold a fresh presidential election in 60 days.

Shortly thereafter, an angry President Kenyatta made the telltale "we shall revisit" comment.

 "We shall revisit this thing. We clearly have a problem," he stated. This was widely taken to mean that the Judiciary would be punished for nullifying the election.

The repeat election was held on October 26, and Uhuru easily won as his main competitor, ODM leader Raila Odinga, pulled out saying the polls agency had shown no intention of ensuring the irregularities in the first election would not recur. 

A series of events occurred after Uhuru began his final term in office,  which implied that matters were being "revisited".

In August 2018, Deputy Chief Justice Philomena Mwilu was arrested at the Supreme Court over graft allegations in her dealing with Imperial Bank, now in receivership. 

She was picked up by DCI detectives and questioned at the directorate's headquarters on Kiambu Road, Nairobi.

Mwilu was one of the four Supreme Court judges who supported the nullification of the presidential election.

She claimed the arrest was part of the efforts to remove her from office.

Director of Public Prosecutions Noordin Haji filed a case against her with a total of 13 counts, seven of them related to non-payment of Sh 12 million stamp duty.

Mwilu got a reprieve in May after the five-judge bench hearing her case quashed the criminal case, saying the DCI violated her right to privacy by the manner in which it obtained its evidence.

"DCI's way of obtaining the evidence has irredeemably rocked the foundation in which the charges stand," they held.

Haji dismissed the ruling and vowed to appeal. He insisted his office obtained all the evidence presented to the court within the law and accused judges of ruling on a matter which was not before them.

"We obtained the orders from Milimani Law Courts. We did not obtain the evidence from Imperial Bank. We are sending our evidence to JSC as we pursue other grounds on the ruling made," he said.

FRUSTRATING WAR

During the 2018 Jamhuri Day celebrations, the President accused the Judiciary of frustrating the war on corruption.

The President said he was not happy with how the courts were releasing corruption suspects on “ridiculously low bail terms”.

“Through the efforts of our investigative agencies and the Office of the Director of Public Prosecutions, individuals who may have thought they were untouchable, are now facing the full force of the law. These individuals deserve a fair trial but nothing more. I am again calling on the Judiciary to ensure that its procedures are not used to protect impunity,” Uhuru said.

The war between the two arms of government escalated in 2019 after the Executive and Parliament cut the Judiciary's budget.

Early last month, Maraga expressed his dissatisfaction with the Executive over the budget cut, saying that this would hurt the Judiciary.

He said the National Treasury does not have any power to tamper with the funds allocated to the Judiciary once it has been passed by the Parliament.

"The Constitution does not give such a direction in respect of the budget of any other state organ," Maraga said.

He stated that the Constitution accords the Judiciary special treatment and that no single arm of government is authorised to exercise the sovereign power of the people.

Maraga said the three arms: Judiciary, Executive and Legislature are equal and that each should focus on its mandate.

"None of the three arms of the government should control or direct how any other arm should exercise the power that the people of Kenya have delegated to that state organ," Maraga said.

Maraga said the setback will also hamper the court's efforts in fighting corruption since anti-corruption courts would be affected.

The CJ further revealed that a section of the Cabinet Secretaries was plotting to oust him from the office.

On November 6, the National Treasury restored the Judiciary's budget after a court order.

Judiciary Chief Registrar Anne Amadi confirmed the restoration of the funds.

The Law Society of Kenya had filed a petition on October 25 challenging the Treasury's move to retain the funds.

But the war is far from over since the fate of 41 judges nominated by the Judicial Service Commission (JSC) for appointment and elevation to higher office are yet to get the presidential approval.

Eleven of the 41 were to join the Court of Appeal while 30 were picked for the Environment and Land and Labour Relations courts.

The Kenya Magistrates and Judges Association (KMJA) on November asked the President to appoint the 41 judges terming the delay an"affront of the Constitution that waters down the institutional independence of the Judiciary."

According to Derrick Kuto, the secretary-general to KMJA, there are about 400,000 cases filed annually against a diminishing number of judges and magistrates.

Further, he added that the backlog of cases older than one year, as of July 1, 2019, stands at 372,928.

According to the association, the country has 644 magistrates and judges combined serving a population of 47.5 million.

Further, it blames the slowing down of the administration of justice on the small number of magistrates and judges as cases take longer in court.

The association wants Uhuru to stay true to his oath of office to uphold the Constitution by appointing the judges nominated by JSC.