In true democracies and in some relatives such as ours, the government is comprised of three branches that check and balance each other — the Executive, , the Legislature and the Judiciary.
Before 2010, all three branches were controlled by the occupier of State House, regardless of who headed the other two. After the new Constitution, we at least have on paper a government system where the heads of each of these branches are act independently and check each other.
For its part, the Judiciary has always been the domain of learned friends with all manner of awe and mystique.
When former Chief Justice Willy Mutunga took the helm at the Judiciary, he was supposed to bring with him and the new court an aura of freshness, impartiality and cleaning up and unclogging the previously rotten court system.
One way, Mutunga thought of doing this, was to change the court attire.
Writing on the issue at the time, Mutunga noted that, when he and his deputy were sworn in, they wore business suits, and neither of them were robed nor wigged. Immediately after this ceremony, a national debate emerged on the dress code for the Kenyan judiciary. They were of the view that the newly established Supreme Court did not have a dress code and there was need to discuss the issue with Supreme Court judges.
As Mutunga put it, both felt very strongly that the promulgation of the new constitution on August 27, 2010, “overthrew the colonial and neo-colonial constitutions that had been crafted without broad participation of the Kenyan people”. They, therefore, felt there was need to rethink the relevance of the colonial relics, reflected in the judicial attire and address, under the new Constitution.
To be sure, judicial attire has changed throughout history, from donning robes, wigs, hats, gloves, and medals after the English Civil War, the American and French Revolutions, and Napoleon’s conquests. As one historian put it, because courts are the point of immediate contact between society and a government’s laws, leaders have often changed their judges’ attire to portray an image of dignity, strength, authority, wealth, or populism that they choose to project on their citizen.
No one can argue, and it’s, therefore, a puzzle to many how Chief Justice David Maraga thought being sandwiched among groupies of a politician at a roadside event was such a good idea, let alone one that comports with the court’s image of dignity, strength and authority, among other things.
Expressing their horror, several senators, including Senior Counsel James Orengo and Moses Wetang’ula offered to pay the CJ a visit and bring him to speed as to what is and what is not acceptable of him as the head of the Judiciary. Senator Ledama ole Kina thought the photo showing Maraga at a roadside political event was photoshopped only to be assured by a fellow senator who triggered the castigation on the floor that it was not.
There’s no doubt Maraga has learnt a lesson from this experience and it’s unlikely we’ll ever see him at another roadside political event.
However, a question can be asked, notwithstanding the humility, skill and judiciousness with which the Chief Justice has thus far led the court: Is it not time for someone else to take the court to where it must go?
The court needs someone who knows how to bark and effectively keeps the President and Parliament in check.
That person is not the sitting CJ. He’s too humble, too well-mannered to do any of that.
Samuel Omwenga is a legal analyst and political commentator in the United States