CJ’S STATEMENT ON THE FAILURE BY THE PRESIDENT TO APPOINT
THE 41 JUDGES RECOMMENDED BY THE JSC
CJ Maraga
After issuing a statement this morning on upscaling open court operations without compromising the Ministry of Health Guidelines on combating the spread of the COVID-19, it is imperative that I advise Kenyans on the state of our case backlog which has now been exacerbated by the downscaling of Court operations due to the pandemic. It is important that Kenyans understand that even as the Courts begin to upscale operations to include in-person operations, they will find extremely congested Court diaries and dockets. The backlog of cases has built up quite aggressively since 15th March, 2020.
Fellow Kenyans, the numbers of cases pending before our Courts and the number of Judges we have in our Superior Courts make for a grim reality for those of you who will be filing cases before our Courts, especially in Nairobi, in the coming days: If you file a land case in the Environment and Land Court (ELC) at Milimani Nairobi today, the earliest your case will be heard is 2022. This is because we have a total of 33 ELC Judges in the country against a caseload of 16,457 as at 31St March, 2020. The situation is probably worse at the Court of Appeal which has only 15 Judges serving the whole Republic with a caseload of 7,315 as at 31St March, 2020. The situation is not any better at the Employment and Labour Relations Court (ELRC) which has only 12 Judges throughout the Republic against a caseload of 13,197 as at 31St March, 2020.
It is important to clearly and categorically state that this shortage of judges and the near paralysis of court operations has been caused by the President’s refusal to swear in the 41 Judges recommended by the Judicial Service Commission (JSC) in July 2019 for appointment to the Court of Appeal, the Environment and Land Court and the Employment and Labour Relations Court.
The President has persisted in this refusal despite orders in two cases requiring him to swear in these judges within 14 days. In the two cases, Petition 427 of 2019 – David Kariuki Ngari & Another vs. Judicial Service Commission & Others and Petition 369 of 2019 -Adrian Kamotho Njenga vs. The Hon. Attorney General & Others, the President argued, through the Attorney General, that he refused to swear in the nominated judges because he had information that some of them have integrity issues. He claimed that he was actively consulting with relevant State organs with a view to taking appropriate legal and administrative action, including a review of the JSC recommendations.
The two courts rejected those arguments and held that the JSC’s decision recommending persons for appointment by the President as judges, is not subject to review, reconsideration or second-guessing by the President. Once the JSC makes recommendations, the President has no other option but to formalize the appointments.
The Courts ruled that the President cannot change the list, review it or reject some names. He cannot decide to cherry-pick from the list of nominees.
Both Courts ruled that the President must appoint the persons as recommended and forwarded to him by the JSC since the President has no residual legal power to question or reject names recommended to him by the JSC for appointment as judges in accordance with the Constitution.
The Constitution does not donate any mandate to the President to perform any other act, upon receipt of the names recommended by the JSC, except to appoint them. Both Courts categorically held that the refusal by the President to appoint the 41 Judges was a grave violation of the Constitution. Having reached that decision, the Court in Petition 369 of 2019 – Adrian Kamotho Njenga vs. The Hon. Attorney General & Others, consisting of 5 Judges directed the President to appoint those judges within 14 days. The Attorney General, as is now his practice, filed Notices of Appeal but he has not done anything to prosecute appeals, if any, from those decisions. Neither has he obtained any stay of execution in either of those cases.
The legal position, therefore, is that the President was obliged by two valid Court orders to appoint the 41 judges within 14 days of the decisions by the two Courts. The President’s disregard of Court orders does not bode well for our Constitutional democracy and is, potentially, a recipe for anarchy.
Besides the Court Orders, I have challenged the Executive to table before the JSC the alleged information of lack of integrity it has against some of the 41 nominees. Some of the individuals the Executive claims to have adverse information against are serving judges.
If the Executive’s allegations are true, these persons should not, then, be serving as judges.
Disregard for court orders
However, no evidence whatsoever was availed to the JSC both during the interviewing process and after. Unfortunately, this disregard of Court Orders by the President is part of the pattern by the Executive. It is important to remind Kenyans that in addition to these two specific Court Orders, the Executive routinely disregards Court Order. For example, despite an existing Court Order, the Government recently evicted over 1000 families from the Kariobangi Area in Nairobi – all in the midst of COVID-19 Pandemic. Additionally, the Government has wilfully neglected to settle dozens of Court decrees issued by various Courts against the Government. These Court decrees amount to almost Kshs. 1 billion by conservative estimates. Many of these decrees arise from personal injury claims by victims of road traffic accidents caused by Government vehicles. In some of these cases, the victims have suffered paraplegic injuries. Yet, the Government has failed to settle these decrees.
Because they cannot afford to pay for nursing care, some are carried out by their grandchildren to busk in the sun but at times forgotten there to be rained on. Attempts to compel the accounting officers in the relevant Ministries are always rebuffed with the contemptuous “Uta Do” attitude.
How can we expect God to bless our nation when we are so callous to the most desperate in our society? There are many other Court decrees and orders which require the assistance of the Police to execute which have been neglected or disobeyed. As a result, many decree holders are unable to realise the fruits of the judgments in their favour.
Your Excellency you know I have respect for you as our President and I have told you that. You also know that I have, for a long time now, unsuccessfully sought an appointment to discuss this issue with you leaving me with no option but to raise the matter through this public statement. It will be dereliction of my duty if I do not raise Wanjiku’s agonies in my domain. At least let her know that I share in her frustrations. It is for this reason that I must remind you Excellency that you swore to defend and uphold the Constitution and the laws of Kenya.
‘Respect the law’ – Maraga
The Constitution, as the two multi-judge Court cases held, requires you to appoint Judges recommended to you by the JSC which you have refused to do. The laws of this country include valid court orders. It therefore behooves you to appoint the 41 persons recommended for appointment by the JSC as ordered by the Court without any further delay. As your Excellency has pledged in the past, you respect the Rule of Law. I urge you to now demonstrate that faith and respect for the Rule of Law by complying with those two Court Orders. In doing so, you will also alleviate much suffering for Kenyans who are seeking justice in our Courts.
In the same vein, I request your Excellency to instruct the Attorney General of the Republic to take stock of all the Court decrees and orders issued against the Government and to immediately begin a process of satisfying them. It greatly undermines the Rule of Law for the Government to act in defiance of Court Orders; and this pattern puts at great risk our constitutional democracy because it risks the contagion of lawlessness. The Government should be in the forefront in upholding the Rule of Law. The Government cannot demand of its citizens the obedience of the law it is itself disobeying with abandon.
Hon. David K Marage, EGH
Chief Justice and President
of the Supreme Court of Kenya
June 8, 2020
