I have received very disturbing information from very reliable sources that the Hon. David Kenani Maraga, Kenya’s Chief Justice, has succumbed to pressure from third parties and he is now acting against his mandate as the custodian of the rule of law. 

The Chief Justice wants to punish the Hon. Justice Enock Chacha Mwita by transferring him out of the Nairobi Station just because he recently granted orders suspending parliamentary proceedings to oust the Auditor-General pending the hearing and determination of a constitutional petition I filed in the High Court against the process. 

The Chief Justice is also reported to have begun putting pressure on individual judges not to issue orders against the Government in proceedings before them. 

This state of affairs is unacceptable and I urge the learned Judge to stop and reflect on the all-important position he occupies in the Kenyan State, as the Chief Justice. He is not an errand boy for anybody! 


Every organ of government and every resident of Kenya is subject to the application of the law. No person or government is beyond its reach. This principle is often called the “rule of law” and is important in a democratic system of government. A former Secretary General of the United Nations has defined the rule of law as follows: 

It refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.[1] 

The independence of individual judges, who are tasked with interpreting and applying the law in specific cases, is a very important part of this principle. 

A famous English judge said that “Justice must be rooted in confidence.” He was referring to the confidence litigants and the public must have that judicial decision-makers are impartial. Those who come before the courts must be certain that decisions made by those courts are not subject to outside influence. 

Judicial independence means that judges are not subject to pressure and influence, and are free to make impartial decisions based solely on fact and law. 

Judicial independence is often misunderstood as something that is for the benefit of the judge. It is not. It is the public’s guarantee that a judge will be impartial. The principle has been expressed this way: 


In the final analysis we value and stress judicial independence for what it assures to the public, not for what it grants to judges themselves. Ultimately, the sole purpose of the concept is to ensure that every citizen who comes before the court will have [their] case heard by a judge who is free of governmental or private pressures that may impinge upon the ability of that judge to render a fair and unbiased decision in accordance with the law.[2] 

With those few remarks, I strongly urge the Chief Justice to abandon the destructive path he has embarked on. If for nothing else, to avoid taking us back to the dark days when nightmares like the 2007/2008 post election violence were visited upon us because protagonists had no confidence in the judiciary.

 

 

[1] U.N. Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary General. (S/2004/616). 23 August 2004. Online: http://www.unrol.org/files/2004%20report.pdf

[2] Garry D. Watson, “The Judge and Court Administration” in The Canadian Judiciary (Toronto: Osgoode, 1976) at 183 quoted in British Columbia, Commission of Inquiry Pursuant to Order-in-Council #1885, July 5, 1979, Report of the Honourable Mr. Justice P.D. Seaton, Commissioner (October 23, 1979) at 11 [“Seaton Report”].

Add comment


Security code
Refresh