HEADLINERS' PROFILE

Maraga's controversial tenure as CJ

Even as Maraga prepares to leave office, he leaves a divided opinion and controversies over his decisions and that may end up being his legacy

In Summary

• This week, Chief Justice Maraga dropped another bombshell, advising President Uhuru Kenyatta to dissolve Parliament over failure to implement the gender principle.

• The first was the nullification of the 2017 presidential election

Chief Justice David Maraga
Chief Justice David Maraga
Image: PSCU

 “The greatness of a nation relies on its fidelity to the constitution and adherence to the rule of law,” Chief Justice David Maraga said when the Supreme Court annulled the 2017 presidential election.

That was the first presidential election to be annulled not only in Kenya but also in the whole of Africa.

This week, Maraga dropped another bombshell, advising President Uhuru Kenyatta to dissolve Parliament for failure to implement the gender principle.

After receiving six petitions, the CJ said Parliament’s failure to enact a law to operationalise the constitutional provision amount to an act of impunity.

 

“It is incontestable that Parliament has not complied with the High Court order. As such, for over 9 years now, Parliament has not enacted the legislation required to implement the two-thirds gender rule which, as the court of Appeal observed in its said judgement, it is clear testimony of Parliament’s lackadaisical attitude and conduct in this matter. Consequently, it is my constitutional duty to advise Your Excellency to dissolve Parliament under Article 261 (7) of the Constitution"
Chief Justice David Maraga

As expected, and as was the case in 2017, the move has created a huge divide in the national political discourse and in the legal fraternity.

So angry was Uhuru in 2017 that he termed the Supreme Court judges crooks and promised to revisit the ruling.

And revisit he did as the last three years have been Executive vs the Judiciary. So far, the President has declined to appoint 41 judges, leading to Maraga making a public protest.

The BBC in 2017 termed him a “brave judge” for his “courage to rule against the man who appointed him, President Kenyatta, and for restoring their faith in the independence of the Judiciary.”

Maraga has also been described as a man of integrity, which is attributed to his being a devout Seventh-Day Adventist. During his vetting, he swore by the Bible that he had never taken bribes when allegations of corruption were made by a petitioner to the Judicial Service Commission.

Maraga, born in Bonyamatuta in Nyamira county, on January 12, 1951, studied law at the University of Nairobi where he graduated in 1977. He proceeded to Kenya School of Law and got his post-graduate diploma in 1978.

He then started his private practice in Nakuru, a business he ran for 25 years until October 2003 when he was appointed High Court judge. He rose to the Court of Appeal in 2012, a year after he obtained a Masters of Laws from the University of Nairobi.

In the same year in May, Chief Justice Willy Mutunga, whom he later succeeded, appointed him to chair the Kenya Judiciary Working Committee on Election Preparations, which was formed to ensure the Judiciary was fully prepared to deal with 2013 General Election petitions.

Maraga has always wanted to rise in rank and just a year after President Mwai Kibaki promoted him to the Court of Appeal, he expressed interest in heading it. He lost the position to Justice Kihara Kariuki, current Attorney General, with a single vote.

In 2013, Uhuru named Maraga to chair the tribunal to probe the conduct of High Court judge Joseph Mutava over corruption allegations linked to the Goldenberg scandal. He recommended Mutava’s sacking.

Before being appointed as CJ, Maraga served as the presiding judge of the Court of Appeal in Kisumu.

MARAGA’S LEGACY

His tenure as Chief Justice draws mixed reactions.

Lawyer Ahmednassir Abdullahi said Maraga is a man overwhelmed by the size of the Office of the Chief Justice.

“A man unprepared for the jurisprudential rigour of the Supreme Court. A man whom greatness was forced upon. A man who left zero legacy in terms of developing the law. A man of left a trail of political controversies in his wake but no jurisprudential footprints,” Ahmednassir said on Tuesday.

Lawyer Donald Kipkorir opines that Maraga’s heart may be in the right place but he is weak, a poor leader and incompetent administratively and in judicial pronunciations.

“His tenure will soon be forgotten as an aberration,” Kipkorir said.

Law Society of Kenya chairman Nelson Havi on Thursday said the advisory by Maraga was well-reasoned, adding that Parliament is unlawful and shall not conduct business beyond October 12.

A veteran court reporter opined that the CJ has not done much even though his promise to reduce the backlog of cases has been realised. The reporters said credit should go to individual judges.

“He has been busy opening courts that Mutunga initiated building and secured funds for. Under him, I don't think Judiciary even got serious donor funds. So he has relied on the government for funds almost entirely and he didn't have favour,” the journalist who didn’t want to be named said.

Maraga is also accused of micro-management.

“He would do impromptu visits to court to see what time magistrates have reported to work. He shouldn't have wasted time with such. He is also not so good with swimming political waters," a judicial officer said on Wednesday.

Lawyer Kethi Kilonzo who shot to national recognition in the 2013 presidential petition, said Marga is hardworking and principled, saying his tenure as Chief Justice has been successful; “yet another hallmark in his long and illustrious legal career”.

“He will be remembered in the corridors of justice long after he has left and for all the right reasons. The legal profession will be the poorer upon his retirement,” Kilonzo said.

Other practitioners say he failed to bridge the gap between theory and practice of law during his tenure.

“To date, (and if you listen to his lectures and read his notes), he's under a dark legal inferiority complex, bowing to foreign concepts of law alien to the African roots that make him irrelevant to the current Kenyan societal needs. In short, his Judiciary is unresponsive to the current needs of Kenyans,” a lawyer told the Star.

A High Court judge on Thursday termed Maraga courageous and stubbornly independent but said he is not a team player.

"He forgot that the Constitution required him to also value working with both internal and external players on whom we depend to support and enrich independence," the judge said.

Governance expert Charles Kipkulei says Maraga's legacy can be understood within the two ambits of his contribution to jurisprudence and on his brick and mortar record in the Judiciary.

“As a legal puritan, Maraga preserved the body of law and applied it with strict fidelity sometimes going for the 'nuclear option' as witnessed by his annulment of Uhuru's reelection and his advisory seeking the dissolution of parliament. On his brick and mortar record, the CJ has presided over an expansion of the court system across the country alongside the digitisation programme which have collectively aided access to justice,” Kipkulei said.

Even as Maraga prepares to leave office, he leaves a divided opinion and controversies over his decisions and that may end up being his legacy: A strict but also controversial Chief Justice never seen in Kenya.