When Chief Justice David Maraga assumed office as Kenya’s 14th Chief Justice (CJ) in October 2016, he roared in with a strong promise to go into overdrive to clear the high case backlog in courts.
He vowed that by the end of his tenure in December 2020, there will be no case older than three years in court.
This appeared well achievable given his predecessor, Willy Mutuga, had done a great job on this front, having inherited an institution that had a backlog of more than a million pending cases, some of which dated to well over 30 years back.
But with just a few months to go before Maraga’s retirement, his pledge has proved to be a pipe dream.
Official reports show that the backlog stood at 341,056 cases as at the end of the last financial year, with the pile-up of cases likely to have worsened in recent weeks after the courts shut down operations following the outbreak of the Covid-19 pandemic. This is a worrying figure, bearing in mind that that any case that remains unresolved longer than one year is classified under backlog.
Maraga painted a grim picture of the situation this week, announcing that the backlog is so dire that the earliest hearing date one can get for a case filed at the Environment and Land Court at Milimani, Nairobi, is in 2022.
But it was downright foolhardy for Maraga to blame President Uhuru Kenyatta for a crisis he inherited, and which he has done little to address during his tenure as the head of the Judiciary and president of the Supreme Court.
In his public rant this week, the CJ attributed the problem to the Head of State’s delay in appointing 41 judges recommended by the Judicial Service Commission for appointment to the Court of Appeal, the Environment and Land Court and Employment and Labour Relations Court last year.
It is clear to any keen observer that Maraga is trying to save face as he finally comes to terms with the fact that time has run out, and he is inevitably bound to go down as one of the worst CJs Kenya has ever had.
But Maraga could have given a more reasonable excuse for his underperformance, given Kenyans are well informed and have been daily witnesses of the dysfunction in the corridors of justice that has precipitated the current state of affairs. They are well aware of how undisciplined judicial officers have frustrated the operations of the Judiciary, and Maraga’s failure to rein in such individuals.
Early last year, disgruntled Kenyans across the country exposed the gross laxity in the Judiciary, taking pictures to illustrate how judges and magistrates were reporting to work well past official court opening hours with impunity.
Some described how they had to wait until 11am for a magistrate to surface in a courtroom while others revealed how staff at various court registries strolled in to work well past 9am. While the CJ personally acknowledged the problem and issued a memo directing that court business kicks off at 9 am, little has changed.
Just how possible is it to address the massive case backlog when judicial officers report to work as they please?
When Maraga announced the partial shutdown of courts to combat Covid-19 spread, most judges and magistrates saw this as the perfect window for a holiday while still drawing salaries from taxpayers.
Rather than take advantage of the time off the physical courts to write pending judgments and rulings from home, the best possible environment to clear the backlog, some judicial officers decided it was time to party and were caught up in the dragnet of those who violated the curfew and other measures to curb Covid-19 spread.
This sparked public anger, with lawyers demanding an apology from the judges and magistrates association, whose members it said should go back to work; not from home but in courtrooms.
Maraga would later reprimand his charges in an internal memo, criticizing a section of judicial officers for frustrating and sabotaging the Judiciary’s efforts to conduct proceedings remotely. He expressed shock that some judges and magistrates were hearing matters only once a week – yes, once a week – and demanded that they deliver all pending rulings and judgments by May 30, 2020.
But rather than come and tell Kenyans if the pending rulings have been cleared, he has now dramatically changed tune and shifted the blame to President Kenyatta and the Executive by extension.
The writer is a regular commentator on social, economic and political affairs.
