Uhuru versus Maraga; Who will blink first?

The tussle between President Uhuru Kenyatta and Chief Justice David Maraga over the Judicial Service Commission membership has put the Executive and the Judiciary in a warpath that is threatening to hamper operations at the courts.

At the heart of the matter is Maraga’s failure to swear in three new JSC members appointed by President Kenyatta unless appellate judge Mohammed Warsame’s name is gazetted.

Unyielding on his part, Uhuru is of the position that Warsame, just like the other members of the commission, must be vetted by the National Assembly before he is gazetted to take up the position.

The standoff that has lasted nearly two months has threatened operations of the Judiciary, including recommending to the President names for appointment as judges; reviewing and making recommendations on the conditions of service of judges and judicial officers, and other staff of the Judiciary.

Also caught up in the mix is the National Assembly. The Justice and Legal Affairs Committee has written to Maraga demanding to know why he has not sworn in the three JSCmembers cleared by the House.

“We have written to invite him (Maraga) to come and explain to us why the members who had been cleared by the House and gazetted were yet to be sworn in months after all the process had been completed,” said committee chairman William Cheptumo.

Mr Cheptumo said Maraga was clearly involved in abuse of office by deliberately declining to swear in members whose names had been gazetted. 

On March 9, President Kenyatta forwarded to Parliament for consideration the names of former Kenyatta University Vice Chancellor Olive Mugenda, former Cabinet Secretary Felix Koskei and former National Assembly clerk Patrick Gichohi.

The names of Koskei, Mugenda and Gichohi were cleared by the Justice and Legal Affairs Committee and passed by the House before they were gazetted. Also awaiting swearing in is Attorney General Paul Kihara who will replace his predecessor Githu Muigai.

Yesterday, Koskei and Mugenda said they did not know why they had not been sworn in. “I am still waiting for the Chief Justice to invite me for the swearing in,” said Koskei.

Mugenda said: “Since the court dispensed with the matter, we have been waiting to be sworn in, I honestly do not know why it has not come to pass.”

The impasse first emerged when President Kenyatta forwarded Warsame’s name to the National Assembly for vetting, a move that was also opposed by the Law society of Kenya (LSK).

High Court judge Chacha Mwita’s ruling that Warsame’s membership was not subject to approval by Parliament could have informed Maraga’s position to await Uhuru’s gazetting of the judge’s name.

LSK suit

As the stalemate continues, the JSC is staring at another controversy surrounding Deputy Chief Justice Philomena Mwilu, who is facing abuse of office and corruption charges. Should Mwilu recuse herself from JSC sittings in the wake of the accusations, the commission faces a quorum hitch. Section 22(5) of the Judicial Service Act, 2011, provides that the quorum of the commission shall be six members.

Perhaps aware of the inadequacies, some JSCmembers on Tuesday last week held a private meeting that unanimously agreed to dig in that Warsame be gazetted without vetting before the swearing in of the new members into the team.

The decision of the majority of the sitting JSCmembers could have informed the move by the LSK to move to court a day after the resolution.

The LSK, in its suit, faulted the President for refusing to gazette Warsame’s name so that he is sworn in. It termed that the President’s action as a violation of the Constitution and dereliction of duty, which undermines the functions and independence of the Judiciary.

Through its lawyer Lempaa Soyianka, the LSK said the failure by Uhuru to gazette Warsame has denied the Court of Appeal representation at the commission.

Justice Warsame beat his colleague Justice Wanjiru Karanja to represent the Appellate court after he garnered 16 votes against four on March 9.

On July 6, the High Court barred the National Assembly from vetting him as a member of the JSC.

Kihara said he has previously stated his position on this matter that the involvement of Parliament is indeed contemplated in the Constitution.

“However, given the important nature of the issue and the fact that there is pending litigation in connection therewith, it would be inappropriate to render further comment,” Kihara told the Sunday Standard.  

jngetich@standardmedia.co.ke