A threat by President Uhuru Kenyatta to Chief Justice David Maraga forced the CJ to make radical changes in the Judiciary yesterday.
Two weeks ago during the anti-corruption conference at Bomas, the President told Maraga that if he did not make changes then “we will help you do so”.
At the conference, Maraga came under intense public pressure to rein in judicial officers seen as stumbling blocks in the fight against corruption. Virtually all senior government officials and ODM leader Raila Odinga accused the courts of giving suspects minimal bails, issuing anticipatory arrests orders and giving injunctions arbitrarily.
But Maraga put up a robust defence of the Judiciary, insisting that the arm of government he leads was independent and judges will always abide by the rule of law. However, President Kenyatta laughed off the excuses, telling the CJ to put his house in order if he was serious about the war on corruption or someone would do it for him. Yesterday, Maraga announced a major shuffle of key judges in a move likely to be interpreted as bowing to pressure from the Executive.
Among those moved is Constitutional Judge Chacha Mwita. He has been transferred to the High Court in Kajiado. Mwita will be replaced by Justice Welson Korir who was in Malindi. A letter seen by the Star dated February 1 and signed by the CJ says the decision to transfer her was reached after a needs assessment was undertaken.
“Following an assessment of the needs and resources of the Judiciary, it has become necessary to make a few transfers at this time,” the letter reads. The letter by Maraga indicated that the transfers will take effect on March 1.
Also moved from the Constitutional and Human Rights Division is Justice Wilfrida Okwany, who will take over from Justice Aaron Makau at the Commercial and Tax Division.
Justice Reuben Nyakundi, who has been the presiding judge at the High Court in Kajiado, has been moved to the High Court in Malindi to replace Korir. It has not escaped the curious eye of observers that Mwita and Okwany have been handling major cases that have rubbed the Executive the wrong way.
Mwita has made multiple decisions that have left the Executive with an egg on its face after bullying its way outside the constitutional order. Some of these have related to the Judicial Service Commission. Others include the controversial deportation of lawyer Miguna Miguna and the criminal case facing Deputy Chief Justice Philomena Mwilu.
Last month, Mwita ruled that President Uhuru Kenyatta violated the Constitution by failing to appoint Justice Mohamed Warsame to the Judicial Service Commission over 10 months after he was elected by his colleagues at the Court of Appeal. Justice Mwita said the decision by the President not to gazette Warsame was unconstitutional and unlawful.
In mid-December last year, Mwita ordered Interior CS Fred Matiang’i and Immigration PS Gordon Kihalangwa to pay lawyer Miguna Miguna Sh7.2 million for unlawfully deporting him to Canada and breaking his Runda house.
The judge ruled that Miguna’s rights were violated and the two senior state officials were held personally liable for their actions, adding that taxpayers should not pay for the public officials’ individual misdeeds. It was Mwita who in August last year suspended criminal charges against Deputy Chief Justice Mwilu.
These are among the changes which were seen coming and it was obliged that Chief Justice will bow to pressure and act accordingly.