Kenya: Court Finds Kenyatta at Fault for Not Approving New Judges

A court in Nairobi on Thursday reprimanded President Uhuru Kenyatta for delaying the appointment and promotion of 41 judges, deepening the tensions between the Judiciary and the Executive arms of government.

The bench of three High Court judges found that President Kenyatta's decision to stall the appointments was unconstitutional, and that he does not have the power to reject or review a list of nominees presented to him by the Judicial Service Commission (JSC)--the judges' and magistrates' employer.

The case was filed last year by Adrian Kamotho, a Nairobi lawyer, arguing that the hiring delay would derail access to justice by Kenyans.

Article 48 of the Constitution requires the State to ensure access to justice by all persons.

Under the Judiciary Transformation Framework, the strategic blueprint introduced by the reformist Chief Justice Willy Mutunga and whose implementation has been sustained by his predecessor David Maraga, the number of judges nearly tripled from 53 in 2011 to more than 150 currently.

The case backlog during that period has also reduced drastically from more than one million in 2011 to 463,040 currently.

But the Judiciary says it still needs more judges and magistrates to trim the backlog further, man its expanded stations and mobile courts in the regions and replace those who have left due to natural attrition.

Last December, the three appellate judges posted to the regions were recalled to Nairobi, underlining the magnitude of the staffing problem at the court said to have been hit hardest by retirements.

The Judiciary has indicated that further cutbacks could be in the offing at the mobile courts if the situation doesn't improve.

It is not clear if the Thursday judgment will force the president's hand into appointing the 40 judges recommended to him by the JSC considering his government's emerging notoriety for ignoring court orders.

Last month, advocates showed up in courts with ribbons pinned to their coat lapels to protest the growing list of court orders ignored by public officials, including the long-standing one requiring the Immigration Department facilitate the re-entry into the country by Miguna Miguna, the outspoken exile in Canada.

President Kenyatta's chief aide, Joseph Kinyua, told the court last October that the head of state was concerned about the financial implications of hiring more judges and integrity questions raised by the National Intelligence Service regarding some names on the JSC list.

Kenyatta and the Judiciary under Chief Justice Maraga have frequently found themselves at loggerheads following the nullification of the presidential election by the Supreme Court in 2017, a decision for which the president called the judges crooks and threatened unspecified retaliatory actions.

The frosty relationship appeared to thaw in late 2018 and early last year when the Chief Justice reshuffled judges--transferring those perceived to be hostile to the government away from Nairobi--and controversially attended a public rally addressed by the president in the former's rural backyard.

But the hostilities resumed in recent months, with Mr Kenyatta publicly accusing the courts of frustrating his fight against corruption by issuing questionable bond or bail terms to high-profile suspects.

The president's claims aren't entirely unmerited: a magistrate was last year suspended for granting a county governor charged with graft bail while officially on sick leave, the Director of Public Prosecutions sought to charge a judge over the disappearance of exhibits in a narcotics case and the Deputy Justice has an active corruption-related case against her.

Complaints to the Judiciary Ombudsperson increased to 2,888 in the 2014/2015 financial year from 2,746 previously.

For his part, Justice Maraga has complained about deep Treasury budget cuts he believes are meant to erode the independence of the Judiciary and unnamed people in government plotting his ouster.

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