• Executive says it is puzzled by CJ's latest outbursts, citing the statement against the President's recent Executive Order.
• The AG wants the CJ to substantiate facts on claims of disregard for court orders.
Image: CHARLENE MALWA
President Uhuru Kenyatta’s administration has accused Chief Justice David Maraga of playing populist brinkmanship with his latest claims on the delayed appointment of judges.
The CJ on Monday lashed out at the President over the stalled hiring of 41 judges whose names were forwarded by the Judicial Service Commission and for disrespecting court orders. They haven't been appointed six months later.
Maraga referred to High Court orders that the head of state should appoint the judges as presented by the JSC.
But the Executive fired back at the Chief Justice on Tuesday, accusing him of violating the norms of communication in government.
“They (Maraga’s comments) are not only a breach of established norms but are also more puzzling given the direct lines of communication between the CJ, the Attorney General and the President,” Attorney General Paul Kihara said in a statement.
He said the CJ risks setting judges against the Executive with the public attacks “which have now taken a decidedly personal slant”.
Kihara said the President cannot be expected to defend and uphold the law and at the same time be pressured to appoint to office individuals against whom competent state organs have cast aspersions concerning their integrity.
“By engaging in public attacks against the President and the Executive, the Chief Justice is not only seeking to erode the confidence that the Executive has always had in the Judiciary but also to railroad judicial officers into anti-Executive stances,” he said.
The AG accused the Supreme Court president of executing “an attempt to gloss over case backlogs that the Judiciary has suffered, and especially under his leadership”.
The Executive says the CJ is to blame for the inadequacies of the judicial system, adding he needs to respect that the government is one entity.
“All its arms and levels were constituted by the people of Kenya to serve them and deliver the public good. The people deserve wise and effective leadership that builds synergies and prioritises service over self,” Kihara said.
The AG blamed the case backlogs on internal factors within the judicial system, citing President Kenyatta’s concerns about corruption cases.
“The persecutory behaviour on the part of the Chief Justice against the Executive will unduly interfere with the decisional independence of judges and magistrates,” Kihara said.
He said it was not the Executive’s wish to descend to public exchanges, especially on matters before the courts.
“Such interventions by any judge, let alone a Chief Justice, are not only unprecedented in a system governed by the rule of law but would also be worryingly unusual and unorthodox,” the AG said.
Concerning the 41 judges, he said the matter rests with the courts following the Executive’s appeal against the High Court decision that President Kenyatta appoints all the judges fronted by the JSC.
“The Executive’s decision to pursue the judicial process in ventilating its grievances is a demonstration of its eagerness to preserve the rule of law,” Kihara said.
He added that by going to the Appeal Court, President Kenyatta has demonstrated his trust in the court system and that he wouldn’t want to make a decision with grievous ramifications.
Kihara, on claims by Maraga the Executive has not prosecuted its appeal, said the courts have yet to provide requisite documents, including typed records of court proceedings, almost four months later.
He argued the President chose to lodge the appeal “because appointing some of the nominees would violate cardinal principles of the Constitution”.
The Executive further blames the CJ for failing to properly handle corruption cases. “The war on corruption has been undermined significantly by the failure of the Judiciary leadership in unlocking critical cases,” the AG said.
Kihara said some of the cases involve individuals with influential positions in the upper echelons of the judicial system.
He said the Executive was willing to work with the other arms of government to deliver the Kenyan dream.
(Edited by V. Graham)