When Chief Justice David Maraga nullified the 2017 presidential general elections, little did he know that he was inviting trouble from the executive arm of the government into his leadership in the judiciary where he is the president of the Supreme Court?
Reading the nullification ruling, president Uhuru Kenyatta, his deputy William Ruto, the Jubilee party brigades and many Kenyans who had glued their eyes watching the live ruling, could not believe their ears and trust their eyes when the chief justice declared that the presidential elections were been nullified.
Many Kenyans thought that the Supreme Court was going to uphold the presidential elections but the contrary happened bringing the dark cloud in the country for a moment for the first time.
On November 4 this year, Maraga vowed not to attend some state functions unless the government starts treating him and the Judiciary with respect. And true to his words, he skipped the unveiling of the BBI Report at Bomas of Kenya.
“Unless, I’m treated with the respect I deserve, I will choose state functions to attend,” Maraga said.
“The CJ is not accorded the respect accorded to his office. CSs and PSs are cleared to enter in places before the Chief Justice.”
Kenya will see the return of the position of prime minister if the BBI proposals are implemented in full.
The BBI team appeared to make proposals that would lead Kenyans to a referendum with all proposals made likely to come through Bills or policy changes. There is fear that the BBI report may find itself in the corridors of justice and how Maraga will handle the case by virtue of being the president of the Judiciary, has left many guessing.
In the history of Kenya, no presidential election victory has never been nullified and therefore with the thunderbolt ruling by the Maraga team, Kenyans thought and expected that the worst was going to happen but thank God, Uhuru who had been declared the winner and his team accepted the Supreme Court verdict by declaring that they were ready for the repeat of the elections as ordered by the highest court in the land.
It is now emerging that the nullification of the presidential elections was the genesis of current problems, troubles between Magara, the judiciary and the top leadership of the Jubilee government and their supporters which are now a big threat to the stability of the judiciary.
After the nullification of the presidential elections, president Uhuru viewed the action as humiliation to his administration and therefore did not shy off and came out openly to declare that they were going out to hit back at the judiciary over the contentious ruling it had done against his win and that of his Jubilee party .
Sources within the Jubilee government confided that immediately president Uhuru was declared the winner after the repeat of the presidential elections, a scheme was hatched with express authority to scuttle the judiciary and remove the chief justice from office.
A formidable team of experts ranging from professionals, technocrats and security agents was formed with the mandate of making ensure that the judiciary was wrecked and finally have the chief justice smoked out of office whichever manner.
The agenda number one was to divide the judiciary by influencing and making sure that some of the leading senior judges rebelled against Maraga so as to create a leeway of bundling him out of the institution.
It is said that the poaching of the Attorney General Kihara Kariuki from the judiciary to his current office was part of the wider scheme of spying, dividing, wrecking and weakening the judiciary from within in a bid to create a scenario of rebellion to have Magara bundled out despite his office having security of tenure.
Unfortunately this tactic did not yield fruit because Kariuki who had been tasked with the enormous role of bringing discord in the judiciary failed to deliver because when he served as the president of the Court of Appeal he made many judges enemies and therefore nobody was ready to buy and listen to his plans of wrecking the judiciary.
The rejection of the 41 judges nominated by the Judiciary Service Commission which Maraga heads by Uhuru who were meant to sit in the Appeal, Labour and Lands Court was part of the wider scheme by the Attorney General to undermine and cripple the judiciary.
The Attorney General is the adviser of the president and it is rumoured that he had to advise him to reject the nominees to the Court of Appeal because they had also refused to remove Maraga from office.
The same team which was tasked to bundle Maraga out of office also decided to use the security agents and the treasury in a bid to frustrate the Chief Justice now that dividing and inciting judiciary officers against him had failed .
There was an attempt by the Interior ministry to withdraw his security on the belief that he would be disappointed and finally decide to resign voluntarily a plot which also hit a snag.
The Interior docket which falls under Fred Matiangi started testing waters when some senior officers failed to honour court summons, an attempt geared at frustrating Maraga so that he could retire willingly one year down the retirement age.
Interestingly, Matiang’i comes from the Kisii community and many people take it as Matiangi’s personal failure to honour court summons was a clear indication that he was rebelling against Maraga.
He also failed to attend and address the justice conference organised at Naivasha where the chief guest was.
Silent gossips and murmurs doing the round in the Gusii community are wondering why Matiang’i was being used in undermining his own brother.
Recently when Maraga addressed a press conference outside the Supreme Court, he openly indicated that budget cuts have been a consistent scheme and not an accident or isolated incident as they were meant to fight him and the judiciary.
He said that some of the incidents that he has encountered are deliberate attempts to undermine the Judiciary.
On many occasions, he said the Judiciary has not been given treatment that is commensurate to other organs of government. He cited the decision to deny the Chief Justice the same official cars as those of the speakers of parliament an indication that the executive was determined to have him out of the Judiciary before his term expires.
He further revealed that there was an attempt to deny the Chief Justice traffic clearance, which was accorded to other heads of arms of government and to officers in the executive who are far junior to the office of the Chief Justice. Public condemnation and outcry led to a reversal of this decision.
He added that the same contempt has been extended to public and state functions and access to important government facilities, such as the ground VIP lounge at the airport. The Judiciary, for instance, is not able to host visiting Chief Justices in these facilities. Even letters of invitation to the Chief Justice are signed off by junior officers, in complete disregard of protocol.
When Magara appeared for interview for the seat of the Chief Justice, he shocked many when he declared that he could not work on saturdays if given the job.
A confidant of Maraga has also disclosed that he was scared of losing his position in the course of discharging hid duties.
He said that Maraga’s political and life experience could not allow him to compromise justice because of politics. The Chief Justice has indicated that the Judiciary’s role and duty is to administer justice to all as stipulated in the Kenyan constitution.
Magara has also stated that the Judiciary is entrusted with the duty of safeguarding and enforcing constitutionalism. As a result, full autonomy and independence of the Judiciary is guaranteed. This is to enable the Judiciary to function without any interference.
He further said that no single arm of government is authorised to exercise all the sovereign authority of the people. The three arms of government, the judiciary, the executive and the legislature are equal and each has to keep to its lane. To put it in simple terms, none of these three arms of government should control or direct how any other should exercise the power the people of Kenya.
He reminded the executive that it is the Judiciary which has been given the power to ensure that each arm of government keeps to its lane; that each arm exercises only the powers delegated to it contrary to what the executive was dreaming and imaging about.
This means that if parliament passes any law that violates the constitution, anybody can go to court and get an order declaring that law unconstitutional. This includes the president (head of the executive) who is bound to act within constitutional confines.
The Chief Justice has maintained that he does not regret presidential election nullification which he made ruling stating “You don’t expect a government official to be happy when told that he or she has corruptly taken government resources. Therefore, in some decisions the Judiciary makes, it is bound to clash with officials in other arms of government,” he added.
Maraga noted that the continued evidenced by the declining of budgetary allocation to the Judiciary over the years, 2017/18 – Sh14.652 billion – 0.69pc of the national budget;. 2018/19 – Sh16.096 billion – 0.66pc of the national budget; 2019/20 —Sh18.857 billion – 0.69pc was crippling the operations of the Judiciary by starving it of funds, that our constitution established the Judiciary Fund and Article 173(6) directs the Treasury to deposit the Judiciary budget in that fund.
The chief justice has named some of the areas of operation affected include transport and fuel costs for judicial officers and the Judiciary, suspension of over 53 mobile courts across the country – which were important for purposes of enhancing judicial services to inaccessible marginalised areas with no coverage of physical courts. “We have had to suspend circuit courts of the Court of Appeal to Mombasa, Nakuru, Eldoret and Nyeri,” he said.
Now the question many Kenyans are asking is that could Maraga survive in the judiciary until his term expires.