The Chief Justice and President of the Supreme Court of Kenya David Kenani Maraga has written a statement protesting the Executive Order 1 of 2020’s butchering of the constitution.
Maraga who in 2017 nullified the election of President Uhuru Kenyatta in August 2017 due to bare irregularities, has told Uhuru that Judiciary and the Judicial Service COmmission are independent
The Order is, by its terms, issued under Article 132(3)(b) of the Constitution which authorizes the President of the Republic of Kenya to `direct and coordinate the functions of ministries and government departments.” Article132(3)(b) of the Constitution is in Chapter 9 of the Constitution which creates the Executive Arm of Government. The Judiciary and the Judicial Service Commission are established under Chapter 10 of the Constitution. The Order cannot “restructure” or “assign” functions to the other co-equal and co-substantial arms of government and independent commissions. An Executive Order cannot “restructure” or “assign” functions to the Judiciary or the Chief Justice. – David Maraga, Chief Justice.
Yesterday, Kenyans were divided as to what the order meant for the office of the Deputy President, with divided opinions even among lawyers.
Some said that the order had now removed the perceived independence DP William Ruto enjoyed and gave Uhuru a dictatorial control over the whole office meaning he can hire and fire them.
Other stated that there was nothing wrong and the changes had been there since 2018 and were only being properly communicated.
Nonetheless, the Judiciary under President Maraga has rejected the subversion of the constitution by Executive order 1 of 2020 and told Uhuru Kenyatta to correct it.
Constitution directly creates the JSC and assigns its functions and powers in Articles 171-173 of the Constitution.
It is therefore obvious that the Order only applies to and is, indeed, only capable of applying to the Executive branch of government. I want to believe that this was an inadvertent error and that the office of the President will promptly issue a correction.
While the Executive Order has no legal effect as the Constitution is clear about the creation of the Judiciary and the JSC and their authority and functions, it is important that the public understands, for the sake of our constitutional democracy, that both the Judiciary and the JSC are independent organs which are neither assigned functions nor derive authority from the Executive branch of government. It is imperative that this institutional independence be made clear in all official government publications and orders. This will serve to avoid confusion among members of the public as well as foster the constitutional letter and spirit of separation of powers. It will also avoid the unwitting undermining of the other independent arms of government and institutions. – David Maraga, Chief Justice.
November 4th 2019
After the nullification of his election, President Uhuru Kenyatta had promised to ‘revisit’ the judiciary calling them wakoras (crooks) who were subverting the rule of law.
“We shall revisit this thing. We clearly have a problem…Who even elected you? Were you? We have a problem and we must fix it,”” he said, referring to the judiciary.
That revisiting came and was exposed by Maraga on November 4th 2019.
That monday, November 4th 2019, Chief Justice David Maraga complained bitterly about the budget cuts in the Judiciary stating that operations at the Judiciary will be greatly jeopardized.
“Unless the budget cuts are reversed, we do not have money for fuel, we will not have mobile courts, we will not have the court of Appeal circuits, we will not be able to pay for wi-fi for the e-filing and e-payments, plans to automate corruption courts will halt.” Said Maraga.
A visibly irritated Maraga claimed that the executive has been treating the judicial arm of the state with contempt even as he disclosed plans to oust him before the expiry of his term.