Maraga, Kihara standoff over new judges splits legal minds

Friday, June 12th, 2020 00:00 |
AG Paul Kihara and CJ David Maraga interact at the steps of Supreme Court, Nairobi. Photo/PD/FILE

Legal experts are split over the stalemate in the Judiciary over delayed appointment of judges that has been the subject of an ugly spat between President Uhuru Kenyatta and Chief Justice David Maraga.

While some blame Maraga for his woes, others point fingers at Attorney General Paul Kihara who they accuse of filling an appeal that has delayed the appointment of 41 judges by the President, that it should be withdrawn immediately to pave way for a middle ground settlement.

Senior lawyers who spoke to People Daily were of the view that the matter be addressed through the Judicial Service Commission (JSC) the Judiciary top organ in which the President has representative. Others also suggested that the matter be addressed through mediation.

 Maraga has blamed Uhuru’s “refusal” to appoint the judges approved by the Judicial Service Commission for a backlog of nearly 37,000 cases but Kihara has dismissed the CJ, accusing him of playing to the gallery and commenting on matters before court.

Maraga has also accused the President of undermining the independence of the Judiciary.

Senior Counsel Nzamba Kitonga advised Kihara to withdraw the case in Court of Appeal contesting the High Court decision, which faulted President Uhuru for delaying to appoint the judges who were set for promotion.

A three-judge bench comprising Justices Lydia Achode, James Makau and Enoch Chacha Mwita ruled that the President has no mandate to review, reconsider or decline to appoint those recommended for promotion by the Judicial Service Commission (JSC).

According to Kitonga, the case is “embarrassing” to AG client’s the President and it should be withdrawn before a middle ground is reached.

“It should not even be a court case in the first place. The case in the Court of  Appeal should be withdrawn as it is a matter of appointing the judges and magistrates, if the President has issues with any of them, he should present the evidence to the JSC,” Kitonga, who chaired the Committee of Experts on Constitutional Review that wrote the 2010 Constitution said in an interview with People Daily.

 Bob Mkangi, who was a member of the committee, warned that the brawl has escalated to astronomical levels injuring the posture of both the Judiciary and Executive.

The state is a resemblance of a nation’s stability, he said.

“When the headlines scream that the executive and Judiciary are fighting. It shows a bad picture that our stability is compromised, it sends a wrong signal and bad reputation to the international community,” said Mkangi.

Though, internally Kenyans may understand the disagreements between the two levels, he said, externally it sends a signal that Kenya is on the rocks.

“Investors would want to operate in an environment where the rule of law is respected,” he said adding that the checks and balances should be within constitutional limits.

Mkangi, has proposed that a team of religious leaders or friends of CJ and the President to initiate a process of bringing the two protagonists to the dialogue table.

He has also proposed a team of experienced and seasoned politicians with standing in the society to lead the process of brokering peace between the two sides.

According to the legal consultant, the country has enough experiences to borrow from starting with the March 9,  2018 handshake between President Uhuru Kenyatta and Opposition chief Raila Odinga and the Inter-Party Parliamentary Group (IPPG) of 1991 that reached consensus of minimum constitutional changes ahead of the 1992 multiparty elections.

“We have institutional memory of being able to navigate and resolve thorny issues that have in the past confronted our country without comprising the state of the nation.

The tiff between the Judiciary and Executive is not any different, we can be able to have a discussion around it and arrive at a solution,”

Former Director of Prosecutions Philip Murgor traces the genesis of the current stalemate to the Attorney General’s role as chief legal government adviser.

According to Murgor, the AG being a member of JSC, he has placed the President in an awkward position having participated in the selection and approval of the 41 judges for appointment.

“In order to resolve the impasse, the AG needs to realise that  he was part and parcel of the JSC decision but he taken about-turn to advise the President not to appoint the same people he vetted,” said Murgor, adding that AG is the one to resolve the crisis. 

“For one to move forward with any form of mediation, the AG must first acknowledge, that he is being an impediment and should clear the way so that he does not embarrass his client, the President who is in all probability an innocent party in this  matter,” he said.

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