BBI: Judiciary Rejects Ombudsman

Former CJ David Maraga
Former CJ David Maraga

By: Samuel Kimani  @MountKenyaTimes

Chief Justice David Maraga has asked the Building Bridges Initiative (BBI) secretariat to drop proposals seeking to have a Judiciary Ombudsman.

In his last presser yesterday before proceeding on the terminal leave in preparation for his retirement, the CJ termed the proposal as a direct conflict and duplication of roles between the Ombudsman and the JSC.

Maraga said the risk of parallel complaints being instituted with the JSC, as well as the Ombudsman adds the possibility of different decisions being arrived at and may result in a constitutional quagmire.

He noted that there already exist other alternative channels such as the office of the Judiciary ombudsman and the Commission on Administration of Justice through which the public can voice complaints.

“It is for this reason that the JSC recommends among other others, the structure and functions of the Ombudsman as proposed by the BBI report under the Constitution of Kenya Amendment Bill 2020 be abandoned,” Maraga said.

Instead, the CJ said the Judiciary Ombudsman must be appointed by the Judicial Service Commission with a mandate to conduct investigations and the report be forwarded to the JSC which will take appropriate action as authorized by the Constitution.

Maraga said the Office of the Ombudsman should also be enhanced strengthened and made accessible to members of the public.

“Of greater concern is the fact that there already exist other alternative channels such as the Office of the Judiciary Ombudsman under the Commission on Administration of Justice through which the public can voice complaints about meaningful independence of the Judiciary,” he said.

“There should also be no uncertainty or confusion about the complaint and the removal mechanism.”

The CJ also took issue with the proposal that seeks to enhance the number of executive appointees in the JSC from four to five saying the move entrenched executive authority in the JSC and by extension in the Judiciary saying such a move would be contrary to the spirit of the 2010 Constitution.

“Such a move will only serve to erode public confidence in our commission that was pumped before 2010 as no longer regarded as truly independent so that the Judiciary is seen as vulnerable to government pressures,” he said.

The CJ welcomed recommendations that would safeguard the judicial independence, accountability and independence.

Maraga said though the BBI secretariat has indicated that the window for making amendments to the bill has expired, the JSC will still send them a copy of the recommendations.

“We are making our positions clear, if they choose to ignore it, the public knows the position of the Judiciary,” he said.

On Thursday, BBI secretariat officially presented 4.4 million verified signatures to the IEBC at the commission’s headquarters in Nairobi.

IEBC chairman Wafula Chebukati however  informed the BBI Secretariat that the electoral commission will only start verification once they get the requisite budget for it.

“Once we have a budget then the commission shall now proceed and have a referendum committee which will undertake the exercise of signature verification,” explained Chebukati.

He noted that the IEBC will be giving periodic updates on the process as and when its applicable.

Explainer-Ombudsman functions

The ombudsman will be nominated by the President with the approval of the National Assembly, and the tenure of the office holder will be five years.

Among the duties envisaged include receiving and conducting inquiries into complaints against judges, registrars, magistrates and other judicial officers and staff of the Judiciary.

The office will be tasked with engaging the public on the role and performance of the Judiciary and also improve the transparency and accountability of the courts.

Maraga’s tenure

Maraga in his tenure in the top judicial office has never shied away from defending the Judiciary’s autonomy to the extent of clashing with the Executive.

He has on a number of occasions accused the executive arm of the government of frustrating and undermining judicial operations for his hard stance against alleged external interference.

In a historic ruling and a first in Africa, CJ Maraga on September 1, 2017, nullified the re-election of a sitting president (Kenyatta II).

The CJ ordered a new vote to be held within 60 days after finding that the outcome of an election held the previous month had been tainted by irregularities.

Two months ago, Maraga advised President Uhuru Kenyatta to dissolve Parliament over its failure to enact a law on gender balance.

Maraga said that though the decision will cause “inconvenience and economic hardship”, it is the “radical remedy Kenyans desired to incentivise the political elites to adhere to and fully operationalise the transformation agenda of the Constitution.”

Maraga’s succession battle

A silent but stormy battle for the control of the Supreme Court has erupted as Chief Justice David Maraga left office yesterday.

Deputy Chief Justice Philomena Mwilu is tipped to become acting CJ.

As the Judiciary’s second in command, Mwilu is the most formidable frontrunner in the race to succeed Maraga who officially retires next January.

However, the battle to succeed Maraga could expand to include both insiders and outsiders.

Court of Appeal President William Ouko, Court of Appeal judges Martha Koome and Wanjiru Karanja are some of the judges also seen as possible replacements.

Given his current position, coupled with long and rich experience serving in positions within the Judiciary, Ouko could be among the front runners.

Koome is also an experienced hand and was among the judges who applied for the job in 2016.

Outsiders who could be salivating for the job include law professor Makau Mutua.

Mutua, the first African to become dean of a law faculty in the US, is a formidable legal scholar. From 2008-2014 he headed the State University of New York School of Law in Buffalo and had applied for the job in 2016.

At the Supreme Court, there are Justices Smokin Wanjala and Njoki Ndung’u.

Ndung’u alongside Jackton Ojwang dissented in the Supreme Court decision to nullify President Uhuru Kenyatta’s reelection in 2017.

In the 2016 recruitment, Maraga defeated Justices Smokin Wanjala, Alnashir Visram, Roselyne Nambuye, Mbogholi Msagha and Philip Nzamba Kitonga to get the top job.

Words has it that JSC — the statutory body that employs judicial officers — could only allow Mwilu to act as CJ once Maraga formally retires on January 12 though a litany of cases lodged against her could threaten her writing history as the country’s first acting chief justice.

On Thursday activist Okiya Omtatah dashed to court seeking orders to block her from assuming the office.

Omtatah wants the court to bar the Judicial Service Commission from appointing Mwilu to act in the powerful office unless she is cleared of all the corruption allegations against her. She denies them all.

“It is both in the public interest and in the interests of justice that the DCJ is either cleared or condemned by the JSC,” Omtatah argued in court.

Law Society of Kenya president Nelson Havi on Thursday said nothing stops Mwilu from acting as CJ because she is the second top-most judge in the country, despite manoeuvres from powerful forces keen on ending her judicial career.

Chief Justice Maraga is expected to retire in January 2021 upon the attainment of 70 years. He was born on January 12, 1951 and will have attained 70 years in January 2021.

Maraga took over the office in October 2016 from his predecessor Willy Mutunga.

His predecessor left office a year before he could attain 70, because “he wanted to give the country sufficient time to recruit a new Chief Justice ahead of the August 2017 election.”

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