“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 the sad reality shared by Chief Justice David Maraga on 8th June 2020. According to the Chief Justice’s assessment at the end of March (CJ), there were 33 ELC Judges in the country against a caseload of 16,457.
The Court of Appeal had only 15 judges serving the whole Republic with a caseload of 7,315 and the Employment and Labour Relations Court (ELRC) had only 12 judges with a caseload of 13,197,he said, referring to the same period.
This statement is a big contrast to what the CJ said last year and was reported by RoGGkenya. According to his earlier statement, Kenyan Courts had Recorded a Reduction of 84 % in Case Backlogs .Understandably, a lot has happened within this period and, the situation has changed to the worse.
COVID-19 doesn’t make things better. The Kenyan Judiciary, just like other branches of government had taken a number of measures to control the spread of the virus. Some of the measures included holding court proceedings away from their usual court rooms.
Some cases were heard and ruled on through various online platforms. This reduced the number of days when the cases were heard and a reduction of the number of cases heard on specific days. As a result, the backlog of cases kept increasing.
While issuing a statement on up-scaling open court operations without compromising the Ministry of Health Guidelines on combating the spread of COVID-19, the CJ blamed President Uhuru Kenyatta for the current situation.
According to the CJ Maraga, “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.”
Maraga added that the President has persisted in this refusal despite court orders in two cases requiring him to swear in these judges within 14 days.
President Uhuru told the courts through the Attorney General (AG) Paul Kihara that he had received intelligence that some of the judges had integrity issues. He was therefore considering legal and administrative issues which would involve reviewing JSC recommendations.
However, according to the CJ, 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 or reject the names,” said Maraga.
Violation of the constitution
Both Courts categorically held that the refusal by the President to appoint the 41 Judges was a grave violation of the Constitution.
The Attorney General filed a Notice 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. A stay of execution is a delay in carrying out a court order.
“The legal position, therefore, is that the president was obliged by the two valid court orders to appoint the 41 judges within 14 days of the decision by the two Courts.” Said CJ Maraga.
Besides the court orders, the CJ has 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,” said Maraga, adding that if the executive’s allegations are true, these persons should not, then, be serving as judges.
Unfortunately, this disregard of court orders by the President is part of the pattern by the Executive. 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 the COVID-19 pandemic.
Unpaid decrees amounting to almost a billion shillings
Additionally, the Government has neglected to settle dozens of court decrees issued by various courts against the Government. These decrees amount to almost 1 billion shillings. According to the CJ, many of these decrees arise from personal injury claims by victims of road traffic accidents caused by government vehicles.
CJ Maraga also complained that he has, for a long time, unsuccessfully sought an appointment with the President, so a public statement was his last option.
Lastly, the CJ requested the president 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.”
Court orders disobeyed by the government
There is a long list of court orders that have been disobeyed by government. We will however share just a few.
- At the height of the TV shutdown following the controversial swearing in of Raila Odinga as the People’s President on January 30, 2018, a High Court in Nairobi ordered the Communications Authority of Kenya (CA) to restore live transmissions.
These orders were ignored by the government. The television stations were later back on air long after the ordered time. Also, the communications authority refused to receive the court orders as would be expected from any other law-abiding citizen.
- In a strange twist of events, it’s boss, Francis Wangusi, who had been away when the TV shutdown had been effected, suffered the same ordeal. The same institution refused to receive court orders returning him back to his office after a fallout with the board.
- Former Interior Cabinet Secretary, the late Joseph Nkaissery was found guilty of contempt by a Mombasa court. He had disobeyed a court order stopping the destruction of a ship which was to be used as an exhibit in a drug-related case.
- The Government of Kenya has disobeyed countless Court orders concerning Lawyer Miguna Miguna. We will however list some of them.
a. After Lawyer Miguna Miguna had sworn in Raila Odinga as the People’s President, he was arrested. The High Court then ordered the former Inspector General of Police, Joseph Boinnet to release Miguna on a cash bail of Sh50,000. Boinnet was also ordered to appear in court in person. He ignored both ordered by Justice Luka Kimaru.
b. On February 6, 2018, at 11.00 am, Justice Luka Kimaru orders the government to release Miguna on a Sh50,000 anticipatory bail. The government disobeyed these orders and instead rushed him to the Kajiado law courts and charged him.
c. On February 6, 2018, at 3 pm, Miguna’s lawyers returned to Justice Luka Kimaru and informed him that the police were still holding their client. The judge ordered the Inspector General of Police and Director of Criminal Investigation (DCI) boss George Kinoti to produce Miguna Miguna to court in person. But instead of obeying these orders, they whisked him to the airport and deported him.
d. On February 15, 2018, Justice Kimaru again ordered the immigration boss and the interior Cabinet Secretary to surrender Miguna’s passport to the court. Instead, they perforated his passport and presented it to the judge. A perforated passport, in essence, cannot be used as a travel document.
e. On February 26, 2018, Justice Chacha Mwita ordered the state to facilitate Miguna’s re-entry into Kenya. This too has never happened despite Miguna’s attempts to come back.
e. On March 27, 2018, Justice Roselyne Aburili ordered that Miguna be released from the airport where he was detained and be produced in court. Again, the government failed to comply.
What Journalists should do:
- Explain to your audience the role of the different arms of government.
- Document the experiences of some of the people who have been affected by the Court case backlogs.
- Document the experiences of people who have been affected by the government’s refusal to pay court decrees.
- Do a follow up on what happens next after the public outcry by the Chief Justice.