Kenya's Chief Justice shines YouTube light on tension with government

7 November 2019 · Carmel Rickard

Tension is high between the judiciary and the government in a number of African countries at the moment. But so far only one – Kenya – has seen the Chief Justice come out with a full public statement exploring these problems. The statement, read by CJ David Maraga to a number of media houses, has been added toYouTube, and can now be accessed by anyone interested in the situation. Most of the CJ’s complaints related to the massive cuts to the budget of the judiciary and the impact of those cuts. He also pointed out the contemptuous ways in which he and other judges were treated by the government.

Watch the Chief Justice give his speech

Kenya’s Chief Justice David Maraga has won international respect for the brave decision made by himself and other members of the Supreme Court in setting aside the result of the August 2017 elections.

‘Brave’, because it would inevitably be seen as anti-government in a country where judges are increasingly expected not to rule against the ruling elite.

At the time, the decision was greeted with considerable anger by President Uhuru Kenyatta who made veiled threats about what would happen to the judiciary in the future.

Extraordinary statement

Now, the threatened future has landed. That much is clear for anyone to see – you only need to read between the lines of an extraordinary statement made by the CJ earlier this week.

That statement is significant not only because of the CJ’s use of public and social media to make his point, but also because he spoke so openly about the slights against himself by the government, and the punitive cuts to the judicial budget which are seriously hampering the work of the judiciary.

Unless the cuts were reversed, he said, there was no money for fuel for official vehicles and mobile courts operating in otherwise inaccessible areas would have to stop.

The court of appeal, that normally sat in several centres, would be unable to do so and the backlog of cases would quickly grow. The reduction of case backlogs across the system which had been considerably reduced, would go into reverse.

Wifi

The budget cut from the judiciary had been given to the state’s information and communication technology authority. One result was that the courts no longer had funds to pay for wifi, and e-filing systems and electronic revenue collection all had come to a halt.

The budget cuts were not an isolated case, and the judiciary was being treated contemptuously, he said, citing a number of recent examples.

He had problems at the airport in Nairobi where he was not allowed to use the VIP lounge. He said this caused him personally no problems, but there were times that he received important visitors. ‘Where do you want me to take them?’

VIP lounge locked

He was travelling out of Nairobi with a visiting Chief Justice who had come to Kenya on official duty, at the request of Justice Maraga. As the VIP lounge was locked and officials refused to let him use it, the two went to the Kenya Airways lounge with his guest. ‘Because it was crowded, somebody had to vacate their seat for him.’

‘When I go to other countries, I am treated very well but (not) in my own country.’

'When the visitors of the status of a CJ come here, they are not just visitors of the host CJ. They are visitors of this country.' Last year he had five East African Chief Justices come for an important meeting. Protocol cars were request for their transport, but this was refused.

Friction

Tender cases also caused a lot of friction. ‘The judges don’t go out there looking for cases. Cases are brought to us and when we deal with them you hear people shouting that the judiciary is not allowing the government to operate.’

Such complaints tended to come from ‘senior government officers and their cronies who are buying these tenders.’ Yet these were also the very people he was supposed to approach about getting funds to run the judiciary.

‘The judiciary does not interfere with the affairs of other arms of government. Why are they trying to interfere with our affairs? – They want to control the affairs of the judiciary. They want to control the judiciary. They want to make the judiciary a puppet. We can’t (allow) that.

Impunity

‘The government should lead by example; it should be the first to obey the law. Not the one leading impunity.’

There were a shocking number of awards against the government that had not been paid. ‘Some of them are pitiable cases. But nobody wants to pay these damages’, even where the funds were due to paraplegic people – ‘and yet we are supposed to be a country mindful of its own people’s welfare.’

The government did not have endless resources, but if it lost appeals against awards made by the courts, then arrangements had to be made to pay those judgments. ‘That’s what happens in civilized countries.’

He was 100 % behind President Kenyatta on the question of corruption. Such cases, however, involved a great many documents and took time. ‘There is no way we can do those cases in a day or two and finish.’

Weak link

‘I have 10 magistrates sitting and dealing with those cases. Please Kenyans be patient, the Rule of Law has to be followed. And yet I have heard talk (from senior people) that the judiciary is the weak link.’

He assured judicial officers that he would not allow them to be attacked unfairly. However, if they were involved in ‘anything fishy’, he would be the first to expose them.

‘My last appeal is this: the judiciary is serving or playing a critical role in the economic and political stability of this country. Don’t allow a few people to cripple it. I am making this statement conscious of the fact that our economy is not doing very well. But let the little there is, be shared fairly, so that services can go on.’

'Plot' to oust him

He suggested that judges were treated like ‘illegitimate children’. Even though he had been told of a ‘plot’ to force him out of office, he had no intention of resigning.

Kenyans should halt the disrespect shown to judicial officers. ‘Kenyans need a brave and independent judiciary’ to call out those who were doing the wrong thing, he said.

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.