Stop blaming President for your woes, AG tells Maraga

Wednesday, June 10th, 2020 00:00 |
Chief Justice David Maraga. Photo/PD/SAMUEL KARIUKI

The war of words between the Executive and the Judiciary escalated yesterday with the Attorney General accusing Chief Justice David Maraga of playing to the public gallery and whipping up emotions calculated at blaming his challenges on the President.

In a strongly-worded rejoinder to the CJ’s attack on the Executive on Monday, AG Kihara Kariuki said the public attacks against President Uhuru Kenyatta and the Executive at large do not bode well for governance in a constitutional democracy.

In a statement yesterday, which could widen the rift between the two arms of government, Kariuki, a former judge of the Court of Appeal, accused Maraga of breaking the law by commenting on cases before court, tacitly inciting judges against the President and his government over the mounting cases backlog. 

“The public attacks by the CJ which have taken a decidedly personal slant, are not only a breach of established norms of government but are also the more puzzling given the direct lines of communication that exist between the CJ, the AG and the President,” said Kariuki in the statement issued at his offices yesterday.

He appeared to tell the CJ who has blamed the President’s failure to appoint 41 judges approved by the Judicial Service Commission for the cases backlog, that he was his own enemy.

Frequent attacks

An impression was created of an Executive that is resolute in its battles with the Judiciary, depicting the CJ as a bitter lone ranger who had taken the low road in the tussles between the three arms of government.

The AG, who is the government’s chief legal adviser, said in order to ensure the progress of Kenya’s constitutional democracy is preserved and perpetuated, it is essential that all organs of government work together in a context of mutual respect and deference. 

“Such respect and deference is seriously undermined when the Chief Justice engages in frequent vitriolic attacks on the President and the Executive, especially where the attacks are based on misrepresentations, distortions and half-truths, all lumped together,” said the AG.

Kariuki, who is a member of the Judicial Service Commission (JSC), defended the Head of State against claims he has been ignoring court orders, saying the President does not at all interfere with the independence of the Judiciary.

He said the CJ’s public pronouncements were setting the tone for judges and magistrates over matters that are either currently, or would in the near future, come before them for determination.

“We shall respond to him directly with respect to issues which are not subject to ongoing cases. The Executive will not discuss cases before the court,” said the AG.

Uphold law

On the backlog of cases, the AG dismissed claims that they have been occasioned by the President’s refusal to appoint to 41 individuals recommended by the JSC.

“Cases cannot be discussed in media briefings; the President will not abdicate his role to appoint persons tainted with integrity issues,” Kariuki said in reference to some of the reasons why Uhuru has refused to sanction the appointments.

On Monday, Maraga accused the President of disobeying two court orders on the appointment of 41 judges, saying the Head of State was setting a bad precedent. He expressed disappointment at having unsuccessfully attempted to bring the issue to the President’s attention.

“Your Excellency, you know I have respect for you as our President and I have told you that.

You also know that I have for a long time now unsuccessfully sought an appointment to discuss this issue with you, leaving me with no option but to raise the matter through this public statement,” Maraga told a press conference at the Supreme Court buildings.

He pointed an accusing finger at the AG for having filed a notice of appeal against decisions rendered by the High Court in the two cases but had not followed through to set aside the said decrees.

But yesterday, Kariuki asked the CJ to focus more attention on matters affecting his office and desist from attacking others for his woes, saying: “I invite the CJ to focus on reopening of courts and address the backlog, as well as address complaints on delayed cases. There is only one government, Kenyans want public service, not self-service.” 

The President, said the AG, 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 provided adverse reports and information that questions their suitability to hold judicial office.

“The CJ contends that some of the individuals that the Executive claims to have adverse information against are serving judges and wonders why then, the said individuals are still serving as judges.

That is not a question for the President or the Executive to answer, but one for the CJ, as the head of the Judiciary,” said Kariuki.

The AG added that it is useful to point out that the subject of the appointment of the 41 nominees is pending in court.

He said the Executive’s decision to pursue the judicial process in ventilating its grievances on the question of appointment of judges is a demonstration of an eagerness to preserve the rule of law in two respects.

“Firstly, in the Executive’s considered  view, it is a challenge against a decision whose implementation would cement a grievous violation of the Constitution and, secondly, it demonstrates His Excellency the President’s and the Executive’s enduring respect and trust in the court system,” said the AG.

The CJ, Kariuki added, had not taken any step to prosecute the appeals, despite the filing of Notices of Appeal.

“It is to be stated for the record that an appeal can be prosecuted only after the court provides the requisite documents, including typed records of court proceedings,” he said.

The AG added that he had requested for typed records of the proceedings from the court but the same had not been provided, almost four months later.

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