The verbal warfare between Chief Justice David Maraga and Attorney-General Paul Kihara Kariuki has taken a fresh twist as a petition to remove Kenya’s top judge from office has now been tabled before the Judicial Service Commission (JSC).
Mr Timothy Odhiambo, who only describes himself as a Kenyan citizen, has asked the JSC to initiate Justice Maraga’s removal.
Mr Odhiambo says Justice Maraga made grave allegations that President Uhuru Kenyatta had violated the Constitution without tabling evidence, which the petitioner argues is a ground of his removal from office.
He adds that Justice Maraga also violated guidelines that require judges to avoid situations that could force them to disqualify themselves from cases.
Justice Maraga on Monday issued a public statement, accusing President Kenyatta and his administration of ignoring court orders, including two that required the appointment of 41 judges to various stations in the High Court and Court of Appeal.
Kenya’s top judge also accused President Kenyatta of allowing the eviction of more than 1,000 people from land in Kariobangi despite a court order barring it.
President Kenyatta’s administration, Justice Maraga added, had become notorious for ignoring personal-injury claims totalling over Sh1 billion, in which the victims were wounded or killed by government vehicles.
A day later, AG Kariuki responded to the claims, accusing the Judiciary of dragging its feet in providing documents that would allow him to appeal cases where President Kenyatta was ordered to appoint 41 judges.
He further accused Justice Maraga of making personal attacks against the President and Executive without providing evidence.
Mr Odhiambo, in his petition, argues that Justice Maraga’s statement has now created a scenario where Kenya’s top judge could have to recuse himself from cases that may end up in the Supreme Court.
“From the aforesaid statement by the honourable Attorney-General, who is a respected officer of the court, the titular head of the bar, as well as a member of this honourable commission, it is elaborate that the honourable Justice Maraga by his conduct has not only breached the code of conduct prescribed for judges of the superior courts by an Act of Parliament but is also guilty of gross misconduct and misbehaviour,” Mr Odhiambo says in his petition.
“In light of the foregoing, I hereby petition this honourable commission to find that there are sufficient grounds for removal of honourable Maraga from the office of the Chief Justice and President of the Supreme Court of Kenya and to therefore send this petition to His Excellency the President of the Republic of Kenya for his further action as required under Article of the Constitution.”
Under Kenyan laws, to remove a sitting judge, a petition must be filed before the JSC. If the petition is deemed to have a chance of success, the JSC asks the President to form a commission to hear the complaint and recommend whether or not the judge should be removed from office.
Since the 2010 Constitution was promulgated, only former High Court judge Joseph Mutava has been removed from office after being taken through the process.
If a judge is removed from office, he or she can still appeal in court. Justice Mutava lost his court appeal in March.