Maraga directs his final punches at BBI report

Chief Justice David with Deputy Chief Justice Philomena Mwilu and dignitaries at Kahawa, Kiambu County after launching new court. [Samson Wire, Standard]

Chief Justice David Maraga yesterday signed off with another jibe at the Executive, trashing a proposal to create the office of the Judiciary ombudsman.

In his last official pronunciation on his last day in office, Justice Maraga said the Judicial Service Commission (JSC) recommends the Building Bridges Initiative (BBI) Constitution of Kenya (Amendment) Bill 2020 amended before it is subjected to a referendum.

The JSC is also opposed to increasing the number of presidential appointees in the commission from the current four to five, arguing that it will give the Executive powers to control the Judiciary and water down public confidence in the institution.

Maraga proceeds on terminal leave, pending his retirement in January. It was, like on many other occasions, a day when the CJ pulled no punches in making the Judiciary's stand on a matter known.

“After analysing the proposed creation of the office, the JSC recommends that the structure and functions of the Ombudsman as proposed in the BBI report and the Constitution of Kenya (Amendment) Bill be abandoned,” said Maraga.

But with the BBI Secretariat stating that the door had already been shut for any amendment to the proposed constitutional change, Maraga said they still have hopes their proposals will be considered.

After the briefing outside the Supreme Court, the CJ would later proceed to his last official assignment at the Kamiti Maximum Prison where he commissioned a court to handle high-security trials.

The court will deal with cases on terrorism, drug trafficking and human trafficking.

In the modern court fitted with international standard gadgets, suspects will walk into the courtrooms from the prison facility instead of being transported amid complex security arrangements.

High-profile suspects

“Transporting high-profile suspects from Kamiti to the courts has been a very difficult exercise. The security detail required has been a lot and you can imagine the expense involved. Cases have also been unable to proceed because of the complexity in transporting the suspects,” Maraga said.

The Kahawa Law Courts becomes the second of its kind in the country after Shanzu Court and will be headed by Chief Magistrate Diana Mochache.

The Office of the Director of Public Prosecutions (ODPP) has already trained officers who will handle the high-profile cases at the new court.

Speaking outside the Supreme Court, Maraga said they (JSC) have sent their proposal to the BBI secretariat and that should President Uhuru Kenyatta and ODM leader Raila Odinga decline to have the document amended, they will leave it to Kenyans to decide the fate of the Judiciary ombudsman.

He was accompanied by his deputy Philomena Mwilu, Justice Mohamed Warsame, Mercy Deche, Patrick Gichohi and Judiciary Chief Registrar Anne Amadi.

“We are also aware of the case challenging the BBI pending in court. The JSC will study the cases and if need be, we shall seek to be enjoined to put up our case,” said Maraga.

Article 172 of the proposed amendment Bill establishes the Office of the Judiciary Ombudsman to be nominated and appointed by the president with approval of the Senate.

The Judiciary Ombudsman will receive and conduct inquiries into complaints against judges, registrars, magistrates and other judicial officers. He will also sensitise and promote engagement with the public as well as improve transparency and accountability in the Judiciary, says the Bill.

The proposals state further that the Judiciary Ombudsman shall prepare regular reports to the JSC and an annual report to Parliament on any complaint against judges and judicial officers.

Justice Maraga, however, said the ombudsman’s functions will usurp the powers of the JSC and that it is the commission that should be allowed to appoint the office holder with limited powers to only conduct investigations and report to JSC, which will then take appropriate actions.

Direct conflict

“The Constitution vests in the JSC the responsibility of ensuring the independence and accountability of the Judiciary. The result of the BBI proposal is a direct conflict and duplication of roles between the Ombudsman and the commission,” said Maraga.

He added that the risk of parallel complaints being instituted with the JSC as well as the Ombudsman and the possibility of different decisions being arrived at is real and may result in a constitutional quagmire.

According to the commission, it is unnecessary to create the position since there already exist other alternative channels such as the Commission on Administration of Justice through which the public can voice complaints against judicial officers.

[Additional reporting by Everlyn Kwamboka]