I’m not going anywhere, Chief Justice tells Kenyans

By Nyambega Gisesa

Chief Justice David Maraga has insisted he will fight to the bitter end amid intensified efforts to push him out of office, ending speculations about his imminent resignation.

In his address during the launch of the Electronic Filing Initiative at the Supreme Court Building in Nairobi, Mr Maraga pointed out that various guests spoke as if they were bidding him goodbye.

"This is not my last event as CJ. I'll still be around for a while. I'm not leaving today or tomorrow. You know a retiring judge takes terminal leave. For me that should be around November" the CJ said.

Mr Maraga, who will attain the retirement age of 70 years in January next year, said he would retire once the Judicial Service Commission (JSC) officially writes to him asking that he goes on terminal leave pending his retirement.

The CJ, a firm dispenser of justice, has been a pain to the Executive, which he has often accused of undermining judicial independence.

Various stakeholders and Mr Maraga himself, have highlighted various campaigns aimed at pushing him out of office. "Every time I raise issues that concern the Judiciary, I'm accused of crying. I will continue crying for the Kenyan people," he said.

Mr Maraga spoke a day after a woman accused him of siring a child out of wedlock.

Ms Mary Onyancha claimed the CJ was her child's father and said that she was demanding a Sh161,000 monthly upkeep from him.

Ms Onyancha claimed Mr Maraga had ignored the well-being of their child and that her suit papers were rejected at the court's registry when she went to file a case.

The claims that have ignited a nationwide debate have divided opinion with claims that it's part of a wider scheme against Mr Maraga, part of unending tricks to taint him and the Judiciary.

"The woman is being used by those pushing Maraga out of office," Mr Danstan Omari, one of the CJ's lawyers, said yesterday.

Mr Omari said that Ms Onyancha was required to pay mandatory filing fees of Sh655 which she failed to before she caused the drama.

Mr Maraga's other lawyer, Ms Anita Masaki, said it is not clear whether the child exists arguing that the name of the mother doesn't exist in the registrar of births records.

Mr Omari said names of the officials in the birth certificate presented by Ms Onyancha neither exist in the offices of the registrar of births in the whole country nor have they been there "which means that the birth certificate is generated -- it is not a document to be relied on".

"The affidavit cannot be verified because although it is written by Ms Onyancha, it is signed by a Joan Mwihaki Kiringa so we do not know who the plaintiff is -- whether it is Onyancha or Kihika," he added.

Mr Omari said efforts to force the CJ out of office were proving to be too difficult and the sponsors were now moving to mudsling his name.

"Our client is the Chief Justice of this country. There has been intense pressure from every quarter for the CJ to go or resign or leave office before the end of the CJ's term, which is coming to the end on January 12, 2021," he said.

The CJ and President Kenyatta have enjoyed a love and hate relationship, which started in early 2017, a few months after the President appointed him as CJ, when he was top in an interview for the position.

Their differences deteriorated after the Supreme Court, led by Mr Maraga, nullified the 2017 August presidential election in which Mr Kenyatta had been declared winner.

Instead of accepting the results of the country's apex court, Mr Kenyatta went on a campaign trail in which he claimed that the judges were "paid by foreigners and other fools".

"We have a problem and we must fix it," President Kenyatta said the day after the ruling, in a direct reference to the Judiciary.

Since then, Mr Maraga and the Judiciary have been on the receiving end with considerable budget cuts. "Despite being one of the three arms of government, our budget now amounts to just about one per cent of the country's budget," he said yesterday.

Early this month, AG Kiara Kariuki, railed at Mr Maraga for attacks on the President over the failure to appoint 41 judges.

The CJ accused President Kenyatta of refusing to appoint the 41 judges after the JSC interviewed them and recommended them for appointment.

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

The CJ has also spoken against the Executive's appetite to ignore court orders.

"The disregard of court orders by the president is part of the pattern by the executive. It does not bode well for our constitutional democracy and is, potentially, a recipe for anarchy," CJ Maraga warns.

Mud sliding posters

Mr Maraga's woes which intensified immediately after the 2017 Supreme Court ruling have seen the CJ's portraits and those of other judges hanged along various streets and plastered with unprintable words in several social media platforms.

A fortnight ago, the Judiciary asked the Inspector General of Police to investigate banners that were put up in Nairobi insulting and defaming the CJ.

The banners carrying images of Maraga and senior judicial officers had threatening messages, stating that a "vicious fight" targeting Maraga in particular and the Judiciary in general, had just started.

The posters also claimed that CJ Maraga was having love affairs with judges.

"These attacks, are clearly meant to threaten and intimidate the Judiciary. They do not and will not detract the Judiciary from discharging its core mandate of dispensing justice in a fair, just, and independent manner, without compromise. These kinds of attacks are not new and we have in the past requested the police to investigate and bring to book those responsible," the Judiciary said in a statement.

They were released hours after a group calling itself the People's Law Society of Kenya launched a countrywide initiative to collect signatures aimed at pushing Maraga out of office through a people-driven process.

"Reclaiming and retaining integrity and competence in the judiciary is very critical. The LSK and the Judiciary should stop blackmailing the President and let him do his work since he is the only one directly answerable to all Kenyans," the People's Law Society of Kenya, an organisation which appears to have the blessings of senior officials at the Office of the President, said.

Already, the JSC is handling yet another petition aimed at removing CJ from office.

According to the petitioner. Timothy Adhiambo, the Chief Justice has gone against the Judicial Code of Conduct and Ethics by attacking the President publicly.

"Hon Maraga has made various adverse allegations against His Excellency the President of the Republic of Kenya and against the Honorable Attorney General of the Republic of Kenya," the petitioner say.

Others who have filed petitions for the removal of Maraga include Human rights activist Okiya Omtatah, Nyeri Town MP Ngunjiri Wambugu and Nelson Oduor Onyango. Some of the petitions have so far been withdrawn.

"Pressure is being mounted on the CJ to resign or retire through a petition that is still pending for his removal. The CJ has been very clear that he is ready to litigate over that petition at Uhuru Park where every Kenyan will be able to know that the allegations that are being put across are untrue," lawyer Omari said.

Maraga's deputy, Philomena Mwilu, is also facing investigations into her business deals after her arrest in April 2018.

In September 2018, Chief Justice David Maraga distanced himself from a letter calling for the resignation of DCJ Mwilu.

According to the law, CJ Maraga will leave office after attaining the retirement age of 70 years, as such forcing him out will be a top order unless he leaves willingly before his retirement age.

Under the Constitution of Kenya 2010, judges have guaranteed tenure until a mandatory retirement age or the expiry of their term of office.

Before the inauguration of the Constitution in 2010, for some years the government had removed the security of tenure for judges which it considered as a "great inconvenience".

The government removed such formal constitutional security in 1988 and following pressure by civil society activists and international partners, the security of tenure for judges was restored in 1990 after the suspension of military assistance by the US.

Unlike a number of former Chief Justices, Maraga has often gone ahead to speak against efforts by the Executive to muzzle the powers of the judiciary.

Since independence, the Executive has made attempts to control the Judiciary.

To start with, in 1969 following the banning of the opposition KPU and detention of some of its key leaders, Acting Chief Justice Dalton was hurriedly replaced on the same day that the courts reduced the sentence of Bagdad Kaggia, the KPU vice president, from twelve to six months.

CJ Dalton was replaced on the day of the ruling by Kirill Mwendwa, who was also forced to resign from office barely two years later following a coup attempt.

Mr Mwendwa was killed in a suspicious road accident in September 1985.

For instance, former Chief Justice Alan Robin Hancox, urged all lawyers and judges "to be Loyal to Government and to the Head of State".

In 1997, President Daniel Moi appointed pro-government judge Achaea's Chesoni to be CJ.

Before his new appointment, Chesoni was a former chair of the Electoral Commission, the body that oversaw the 1997 presidential and parliamentary elections that were mired with widespread allegations of vote rigging and irregularities.

Mr Chesoni's successor, Bernard Chunga, was very close to both KANU and President Moi.

Maraga was picked to the position in September 2016 after emerging tops in the Judicial Service Commission interviews with more than 10 per cent points above the rest.

Upon appointment, Maraga became the country's 14th post-independence Chief Justice.

The others were Sir John Ainley (1962-1968), Arthur Dennis Farrel (1968), Kitili Mwendwa (1968-1971), Sir James Wicks (1971-1982), Chunilal Madan (1985-1986), Cecil Miller (1986-1989), Allan Robin Winston Hancox (1989-1983), Fred Apaloo (1993-1994), Abdul Cockar (1994-1997), Zachaeus Chesoni (1997-1999), Bernard Chunga (1999-2003), Evans Gicheru (2003-2011), Dr Willy Mutunga (2011-2016).

During the tenure of Justice Wicks, it is said that the Executive did not lose any case and judges were known to seek the advice of the Government whenever the Executive had an interest in a case.

CJ Wicks was so loyal to the Government that the law on retirement age was amended three times to retain him until he was 74 years old.

Madan was first person to pronounce corruption in the Judiciary and ruled against the Government when he ruled that prosecutorial powers were being used in an oppressive manner.

During Mr Miller's time, the Judiciary almost became another arm of the Executive and the Government removed the security of tenure for judges and that of the Chief Justice.

On February 26, 2003, rather than face a tribunal established by newly elected President Mwai Kibaki to investigate alleged misconduct over his record in political cases under the Moi regime, Justice Chunga resigned paving way for the appointment of Justice Evans Gicheru.

Maraga was as appointed a judge in 2003 and rose to join the Court of Appeal in 2012 and was appointed as CJ in September 2016.

This article originally appeared in Daily Nation. [Photo: Nation Media Group]