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Kenya's Judiciary Puts Executive on the Spot Over Appointment of Judges

FILE - Kenya's Supreme Court Chief Justice David Maraga, center, presides before delivering the ruling declaring the presidential election invalid, Sept. 1, 2017.

Kenya's chief justice has accused President Uhuru Kenyatta of disregarding court orders, failing to approve the appointment of new judges, and threatening the constitution.

Speaking to reporters Monday, Chief Justice David Maraga called on the president to appoint some judges forwarded by the judicial service commission.

"The constitution does not donate any mandate to the president to perform any other act upon [receiving] the names recommended by the JSC except to appoint them," he said.

The names of the 41 judges were forwarded to Kenyatta for appointment in mid-2019.

FILE - Kenya's President Uhuru Kenyatta speaks at Nyayo Stadium in the capital Nairobi, Feb. 11, 2020.
FILE - Kenya's President Uhuru Kenyatta speaks at Nyayo Stadium in the capital Nairobi, Feb. 11, 2020.

Through the attorney general, Kenyatta questioned the integrity of some judges, but twice, the court ruled in their favor.

Maraga said the delay in approving and swearing in the jurists has made work difficult for the courts.

"If you file a land case in the environment and land court (ELC) at Milimani court Nairobi today, the earliest your case will be heard is in 2022. This is because we have a total of 31 ELC judges in the country against the case backlog of 16,457 as of 31st March this year," he said. "The situation is probably worse at the court of appeal, which has 15 judges serving the whole republic."

When contacted, the president's office said it did not wish to comment on the judiciary's accusations.

Bob Mkangi, one of the authors of the 2010 constitution, said the executive branch was "endeavoring to claw back some of the powers that were taken away by the 2010 constitution."

Having an independent judiciary was one of the ways to end Kenya's cycle of political violence, according to some analysts.

"Right now, the judiciary reads mischief in the entire procedure because there is already a Supreme Court judge who has retired from service, there are two judges who are coming up for retirement, as well as the chief justice himself," said Joy Mdivo, a political commentator. "This is significant because it's the Supreme Court that determines if there is a dispute in the presidential election, and so repopulating the Supreme Court is critical not just for the justice system, but clearly it's critical for in the political arena."

In the 2017 presidential election, the Supreme Court, led by Maraga, nullified the vote for failing to meet the threshold for a credible election, a decision that has angered the ruling Jubilee party.

Kenyatta won a new term in a rerun of the election.