In an interview with Citizen TV after his retirement as Chief Justice, David Maraga retraced the history of the dispute over the nomination of 41 judges that President Uhuru Kenyatta has refused to appoint.
President Kenyatta’s refusal has been on the basis that there were adverse reports, apparently by the National Intelligence Service, against some of the 41 nominees.
Maraga acknowledged that in the interview, saying that in the process of recruiting the nominees, various State agencies were asked for their views, and one said there were issues against some of them. When the agency was asked for specifics, it did not give them, and the Judicial Service Commission was of the view that it would be unfair to condemn the nominees on the basis of unspecified issues.
The JSC then went ahead with the nomination, the President refused to appoint them, there were a number of cases in the courts about the issue and the President has since then been issued with court orders to go ahead with the nominations. He continues to refuse to make the appointment and there is now a stand-off between him and the Judiciary.
Maraga’s solution to that stand-off, he says, would be the impeachment of the President for his defiance of the court order. There has so far been nobody willing to take up that complex legal and political task against the President.
The upshot of the stand-off is that the Judiciary remains without the additional judges it wanted, and the judges have been cast into a professional limbo. Those working as advocates are in a situation where they don’t know whether to relinquish their jobs or continue to represent their clients or take new briefs.
Kenyans are the poorer.