How Maraga got sweet revenge against Executive

In Summary

•Perhaps the case of the 41 Judges who remain unsworn more than a year after they were recommended for hiring, is what broke the camel’s back.

•While I do not purport to speak for Justice Maraga, I strongly believe that the Two-Third’s Gender Rule case came just in time for Maraga to show who is boss. 

Chief Justice David Maraga.
Chief Justice David Maraga.
Image: FILE

 In one fell swoop, the President of the Supreme Court of Kenya has scattered the real wielders of power to the four winds. His advisory to President Uhuru Kenyatta, that Parliament should be dissolved within the next 21 days is a masterstroke of sweet revenge. Forget about the bravado emanating from various quarters claiming that the advisory will be ignored, and that life will go on as usual. Utter nonsense! For, if that were the case, National Assembly Speaker Justin Muturi would not even contemplate going to the High Court to appeal Maraga’s advisory – he would just sit pretty, safe in the knowledge that the recommendation has zero effect.

Things on the ground are different, though!

Of course, the President of the Supreme Court of Kenya may repeatedly state that his action emanated purely from the need to ensure strict adherence to the Constitution and the rule of law. Be that as it may, keen observers may not fail to take into account the existing bad blood between the Executive and the Judiciary, emanating mainly from the infamous “we shall revisit” statement made by President Uhuru soon after the Supreme Court annulled his election in 2017. For laymen like me, it is not hard to imagine how Maraga may have looked on in consternation as the President went on to “revisit” the Judiciary by drastically slashing its budgetary allocation, while boosting cash allocations for other bodies such as Parliament.

Last November, media reports quoted Maraga accusing the Executive of deliberately attempting to undermine the Judiciary. Citing multiple instances where he had personally been frustrated by the President Kenyatta’s handlers, the Chief Justice went on to complain about the Kshs.3 billion budgetary slash visited upon the Judiciary.  Cries by Maraga that it is the common mwananchi who would suffer most if Judiciary money was slashed, appeared to have forced the Executive to rescind the decision and reinstate the budget. But the damage had already been done.

Maraga and his team in the Judiciary must have watched with shock and a broken heart as the Executive defied several court orders, with the attitude of “Mta-do?” (What can you do?). The most memorable of these orders concern Miguna Miguna, who was forcibly deported to Canada after the Raila Odinga Swearing fallout. Several orders were issued by various courts, but the State gave them the middle finger. This is something that must have given Maraga – a Seventh Day Adventist elder bestowed with deep humility and a penchant for high discipline – many sleepless nights. For, how could a State that professes adherence to social justice and the rule of law, have allowed its officials to so recalcitrantly and haughtily chosen to ignore court edits? Was this not akin to given a green light for impunity to reign supreme in Kenya?

Perhaps the case of the 41 Judges who remain unsworn more than a year after they were recommended for hiring, is what broke the camel’s back. While I do not purport to speak for Justice Maraga (and neither do I confess to have mind-reading powers!), I strongly believe that the Two-Third’s Gender Rule case came just in time for Maraga to show who is boss. And show who is boss, he did, by advising the President to dissolve Parliament in 21 days, failure to which any deliberations done by the institution thereafter, will be a nullity.

Folks, things are elephant! You know things are hot when the person in charge of the National Assembly (Speaker Justin Muturi) calls a presser and announces that Parliament will be proceeding to court and if things do not work out well, “tuvunje Bunge, twende nyumbani” (we dissolve Parliament and we go home). But herein, then lies the catch: Parliament will be going back to the same courts which they have contemptuously looked down upon in the past, particularly concerning deliberations on budgetary allocations. Granted, the courts are bound to listen to the pleas and make the necessary decisions, but the existing bad blood between the Executive/Parliament and the Judiciary casts serious doubts about whether the former are likely to get a keen ear from the corridors of justice.

Forget about Members of Parliament and Senators who are arguing that the issue is “just an advisory”. It is not just an advisory. It is couched in mandatory terms…”AND THE PRESIDENT SHALL DISSOLVE PARLIAMENT.” MPs and senators are just protecting their turfs; they know the dangers surrounding the Maraga Decision.

So, what next? What can Parliament do to save its skin?

The first option, obviously, is to head to court, and at the same time hope that the High Court will give a favorable decision “lifting” Maraga’s edict.

The second option would be to move with speed and give Kenyan women their portion. Let all parliamentary political parties, religious organizations, et cetera, submit lists of nominees (on proportional basis) of women with proven experience and zeal in public/community service. Many may dismiss this move as impractical owing to its cost implications, but hey, how much money is hemorrhaged as a result of corruption in this country every year. Billions of shillings, right? Suppose that money is recovered from the mega-thieves and used to pay the 80 new women legislators?

The last option would be to totally ignore the Maraga advisory, and hope that life will go on as usual. This will not be easy, however, because it could create a constitutional crisis of monumental proportions where the decisions of Parliament can be challenged before courts and declared null and void. What will the State do in such a scenario? Throw away the Constitution?

All said and done, Maraga has taught his “nemeses” (that is, the Executive and Parliament) who is boss. But not only that. He has also struck a blow for the women of Kenya. They deserve much, much better than the chauvinistic environment they are enveloped in. If Uganda and Rwanda have done it for their women, why can’t Kenya? Forget about the argument that “what men can do, women can do better.” This is hogwash. It does not take into account the historical and socio-economic disadvantages our mothers, sisters, wives… have endured over the centuries. Let us give our women what is rightfully theirs. They deserve it!

But Maraga has not only struck a mighty blow for the other gender; he has also landed a lightning strike against impunity within the Executive. After being hit again and again, Maraga has had his loudest laugh as he heads to retirement! And, as they say, he who laughs last, has the sweetest laugh!


Onesmus Kilonzo is a commentator of social issues.

The views expressed herein are his own and do not represent the standpoint of any organization.