Chief Justice David Maraga has hit out at National Assembly Speaker Justin Muturi and the Law Society of Kenya (LSK) over proposals they made to the Building Bridges Initiative (BBI) task force on the structure and operations of the Judiciary and the Judicial Service Commission (JSC).
Justice Maraga said the two, together with Mr Ngatia Wambugu of Africa Institute for Peace and Human Rights, made proposals that are dangerous, retrogressive, likely to mark the end of judicial independence in Kenya and undermine the rule of law.
He said that some of the proposals made to the BBI task force are aimed at giving the president an upper hand in determining who becomes a judge and water down JSC's mandate of determining those who are suitable for appointment as judges.
The CJ insisted the suggestions tabled before the Senator Yusuf Haji-led BBI team are part of a struggle to control the third arm of government.
In an 11-page statement, the CJ rejected a proposal that the removal of a Chief Justice and Deputy Chief Justice from office should be done by parliamentary acclamation and not by a tribunal.
REMOVAL OF JUDGES
Speaker Muturi had proposed that the National Assembly should be involved in the sacking of a Supreme Court judge.
Mr Muturi had also proposed that whenever the JSC is satisfied that there exists sufficient grounds for the removal of a Supreme Court judge, the commission should submit the decision to the National Assembly.
The MPs, according to the Speaker, would within 30 days examine and determine whether the allegations against the judge have been substantiated.
Where the National Assembly affirms, by a decision supported by majority of MPs that the allegations have been substantiated, then the judge ceases to hold office.
On the appointment of judges, Mr Muturi proposed that when a vacancy occurs at the High Court and Court of Appeal, the JSC should forward to the president a basket of names three times the number of vacancies, for the president to choose.
But Justice Maraga said sending three times the number of names to fill a position means the JSC would forward to the president names of people who are not qualified for the job.
"The JSC would even in cases where it is not satisfied that certain applicants have not met the legal and constitutional threshold still be compelled to submit their names to the president, who might end up appointing those who did not satisfy the JSC," said Mr Maraga.
The CJ also said that according to the Speaker's suggestions, the president would become the nominating and appointive authority, contrary to the doctrine of separation of powers.
"Opening a window for the president, even in a small way, to decide which nominees to appoint and which ones to reject would be a relapse to the old system, which was overwhelmingly discarded by Kenyans in a plebiscite. It would open the window for the reintroduction of manipulation and horse-trading in the appointment of judges," explained Justice Maraga.
But he was quick to add that this is not to say the president has no role on judges' appointment, pointing out that four JSC members are the president's appointees.
On its part, the LSK had called for a review of JSC, given the occurrence of petitions against sitting judges who are also members of the commission that is expected to investigate them.
The LSK proposed that a peer-review mechanism should be established in order to protect integrity of the JSC.
The LSK argues that judges and magistrates who sit in JSC are predisposed to defend their own.
A case in point is a pending petition filed by the Director of Public Prosecutions and the Director of Criminal Investigations before the JSC for the removal of Deputy Chief Justice Philomena Mwilu.
There are other multiple petitions against various judges and magistrates, including one on CJ Maraga by activist Okiya Omtatah over alleged misconduct.
FIDELITY TO THE LAW
According to the LSK, judges and magistrates also shield and safeguard appointments and promotions for their exclusive benefit within the Judiciary and to the exclusion of 'outsiders'.
CJ Maraga responded that the LSK's contentions are premised on non-factual and biased positions that ignore the importance and relevance of the current constitutional architecture.
"The issues confronting the courts are better understood by men and women who have taken the judicial oath to defend the Constitution and whose everyday role is to do so," said Justice Maraga.
In fact, the Judiciary is not adequately represented in JSC because the Environment and Lands Court together with the Employment and Labour Relations Court have no representation, Mr Maraga said.
He noted that the representation of the Judiciary in JSC accounts for 45 per cent, compared to the Parliamentary Service Commission (PSC), whose composition is 85 per cent MPs and parliamentary staff.
Mr Maraga further dismissed the idea that judicial officers and judges at the JSC have protected their own.
In its first 10 years of existence, the JSC has recommended the formation of tribunals to remove six judges of superior courts, has dismissed and disciplined the chief registrar of the Judiciary and seven directors.
Mr Maraga added that the commission has processed 496 disciplinary cases, appeals and reviews against judicial officers and staff, including magistrates.
"This record belies the manufactured perception that the JSC serves to protect members of the Judiciary and cushion them from disciplinary actions. Evidence further belies the carefully manufactured perception that JSC cushions existing members of the Judiciary from competition from outsiders on appointments to higher offices, especially those of judgeship," stated Mr Maraga.
He explained that the JSC has recommended the appointment of 149 judges of the superior courts and only 43 of them have come from within the Judiciary.
Mr Maraga hit out against Speaker Muturi further for suggesting that courts should be stopped from handling cases on acts of commission or omission by the president and that the same be determined by the National Assembly.
Speaker Muturi had also suggested that questions of the constitutionality of an Act of Parliament should only be decided by the Supreme Court.
He had also said courts should not exercise supervisory jurisdiction over decisions of Parliament or county assemblies to remove from office by impeachment any public officer on whom the Constitution or the law provides for such removal.
The proposal was in light of multiple injunction orders issued in favour of governors, county speakers and county executives once impeached by MCAs.
But the Chief Justice opposed the suggestion, describing it as dangerous.
"Article 165(6) of the Constitution only vests the High Court limited authority to supervise the exercise of Parliament's oversight function (not legislative authority) to ensure that Parliament observes due process in the disciplining or removal of public officers," said Justice Maraga.
On the suggestion that challenges on the constitutionality of the Acts of Parliament should be left to the Supreme Court, the CJ said it is impracticable and unwise.
This is because there is need for the issues to be properly ventilated and developed from the High Court through the Court of Appeal before the Supreme Court has a say on the issues.
"Kenyans need to seriously reflect on the pressure and preponderance of the other arms of government over the Judiciary. It is clear to any keen observer that the subscript of these proposals is to control the Judiciary," said the CJ.
He added: "Kenyans should further ask: what is the motivation or interest behind the struggle to control the Judiciary?"