• Even as Kenya waits to celebrate its re-birth this week, there are many doubts as to whether what was passed in the Constitution has been implemented fully.
• On the personal the attacks and allegations made against him, Maraga said the attacks are meant to influence his decisions.
Image: PSCU
Kenya will this week mark another milestone in its history as it celebrates its 10th anniversary since the promulgation of the 2010 Constitution.
With a single stroke of the pen retired President Mwai Kibaki changed Kenya forever when he promulgated the Katiba a decade ago.
The historic Uhuru Park grounds had been filled to capacity as boisterous crowds exuberant, united and teamed with hope for the grand moment expected to herald the rebirth of a new Kenya.
But even as Kenya waits to celebrate its re-birth this week, there are many doubts as to whether what was passed in the Constitution has been implemented fully.
The Star has established that parts of the Constitution has either been 'left to the dogs' or fell on deaf ears.
According to the Kenyan Constitution, 1) In the exercise of judicial authority, the Judiciary, as constituted by Article 161, shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority.
If this is what stated in article 160 of the Constitution, how sure are we that politicians have not been controlling the judiciary for their own benefit?
For example; In 2017, President Uhuru Kenyatta uttered the (in)famous words that Kenya has "a problem" with its Judiciary that must be fixed.
He spoke after the Supreme Court annulled his election win against ODM leader Raila Odinga and ordered a new poll within 60 days.
"We shall revisit this thing. We clearly have a problem..Who even elected you? We have a problem and we must fix it," he said with anger written all over his face.
Since then, the relationship between the President and the Judiciary has been thorny and frosty.
The two have had on and off turf wars, with Chief Justice David Maraga accusing the Executive of interfering with the independence of the Judiciary.
Maraga accused the Executive of being behind a plot to undermine the administration of justice by denying the Judiciary funds.
But in response, the President asked Maraga to “think out of the box” on its use of resources.
The constitution further notes that;
1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—
(a) Justice shall be done to all, irrespective of status;(b) Justice shall not be delayed;(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);(d) Justice shall be administered without undue regard to procedural technicalities.
Speaking to NTV on Sunday, Maraga said the Constitution of Kenya is one of the best in the world.
"If only we could implement it.The political elite started implementing the Constitution in areas where they would reap benefits," he said.
We have singled out judges who are compromised and have spoken against them. We have even petitioned the CJ to dissolve the Parliament since it has failed Kenyans in many cases.Law Society of Kenya President Nelson Havi
Maraga said the constitution has worked well for the Judiciary apart from a few hitches.
"Majority of Kenyans obey the law, it's only a few government officials who are disobeying the rule of law," he said.
When government officials don't obey court orders, what are they telling the people? That can lead to anarchy."
On the personal the attacks and allegations made against him, Maraga said the attacks are meant to influence his decisions.
"I have enjoyed working as the CJ, Some of these attacks are meant to make me change from my convictions. The latest being that some girl alleging that I have an affair with her. At least Kenyans dismissed it. It was so crude and ridiculous," he said.
"If we don't say no to impunity and enforce the laws strictly, we will remain where we are."
Speaking to the Star on phone, Law Society of Kenya President Nelson Havi said the independence of the Judiciary is on the edge.
"The independence of the Judiciary on paper is guaranteed but on the ground things are different," he said.
Havi noted that a few judges who are independent but noted that there are some who have been pocketed by the executive.
"Whereas these judges began well, they have lost the plot and are now with the Executive. They do what the Executive says and you are left to wonder whether their loyalty is to the Judiciary or the Executive," he said.
1. This is how low they have sunk in their determination to undermine the Judiciary and judicial independence. pic.twitter.com/HX1GWT9DjL
— David Maraga (@dkmaraga) June 14, 2020
"Judges who used to uphold the rule of law have been captured."
He noted that the only judges that have remained independent are those that are in the conflict resolution category.
"The Judiciary through its head has played its part. The Chief Justice has been firm in everything that he does," he added.
But Havi noted that the LSK is speaking against the Executive to ensure that they follow the rule of law.
Havi also noted that they LSK is compiling some of the orders that the Executive has disobeyed before they take them to court.
Constitutional Lawyer and the Senior Counsel Ahmednasir Abdullahi said that the Judiciary has not lived to the expectations of Kenya.
"Like in 2017, I knew the ruling was wrong, I was Uhuru's lawyer. It has it's challenges but it performs better than other arms," he told the Hot Seat in an interview on Sunday.
Ahmednasir particularly took issue with Kenya's apex court saying the Supreme Court has not lived to the expectations of Kenyans.
"There is that disappointment. But it is not the weakest link."