Judiciary should reconsider stand on appointment of judges

There’s a growing camaraderie between the three arms of government currently pervading the country. And that is a pretty good thing. For a long time the relationship between, especially, the Judiciary on one hand and the Legislature and Executive has not been very rosy.

Many have argued that indeed it shouldn’t because the latter two are comprised of and headed by politicians naturally characterised by their tendency to favour the personal rather than the common good. This school of thought holds that the rosier the Judiciary relates with these two government counterparts, the higher it is likely to make skewed and personal judicial decisions.

Sound as this argument sounds, it misses the point that to relate well and operate interdependently does not equal compromising independence. After all, these thee arms are supposed to be of one government serving the shared public jurisdiction. So, the “bromance” exhibited between President Uhuru Kenyatta and Chief Justice David Maraga recently can only be good for the country.

The current impasse revolving around the President’s delay in appointing 41 judges who were set for promotion to the Court of Appeal among others threatens to spoil the party, one more time. The head of state raised concerns that some of the judges on the list have serious integrity issues.

But a three-judge bench comprising Justices Lydia Achode, James Makau and Enoch Chacha Mwita directed that the head of state okays the list, stating that he had no  mandate to review, reconsider or decline to appoint judges recommended for promotion by the Judicial Service Commission(JSC).

The JSC interviewed over 100 judicial officers for promotion and settled on 41 judges. During that process, members of the public and state agencies filed complaints against some of the judges who had allegedly been involved in corruption deals.

The National Intelligence Service (NIS) also shared the adverse reports touching on the judges with the commission.

Although JSC claims it considered the complaints, some of the tainted judges still made it to the final list forwarded to the President.

Keen to fight corruption on all fronts, and in all manner and form, President Kenyatta has delayed making the appointment to consult further, including directing Attorney General Kihara Kariuki to seek directions from a higher court.

But amid all this, Maraga himself has on several occasions admitted that corruption in the Judiciary has brought shame to the country.

His main point of reference has been the case of the Akasha brothers, who manipulated judges and other officers in Mombasa to have their drug trafficking case endlessly adjourned locally, only for them to be handed lengthy jail sentences within a year of their trial in the United States. 

The US has publicly revealed plans to have the crooked judges who botched the trial of the Akashas tried in New York amid credible pointers that some of them are among those promoted.

It is thus strange that Maraga is still pushing for the promotion of such judges despite the blot this will leave on the Judiciary, and despite his open pledge to address the rot in the institution. It is simply unbelievable how the CJ has mastered the art of speaking out of both sides of the mouth.

While the Attorney General will appeal the High Court ruling, his case is quite compelling. The process of removing corrupt judges from office is long, tedious, elaborate and expensive; making it easier to stop the promotion of such judges and ensuring that the process is not rushed. Due diligence must be done first.

And as Head of Public Service Joseph Kinyua told the High Court, the President has not declined to perform his duties regarding the appointment of judges.  He is only keen to ensure he adheres to the constitution “in a manner that brings honour to the nation, dignity to the office of judges…” and promoting judges accused of taking part in corrupt dealings is inconsistent with that. 

The President had intended to give the JSC another chance to correct their mistake by returning the names so that the commission could replace the judges with integrity issues. Kenyatta must thus not to be bullied by the Judiciary and pinned down to succumb to wrongdoing in the name of technicalities.

He must stand firm, ruthlessly fight corruption on all fronts and uphold the high integrity threshold for all judges.

Milan Kiplagat comments on social, economic and political issues.