In our constitutional architecture, the Chief Justice wears two hats. He is the head of the Judiciary, administratively and managerially. He is also the President of the Supreme Court. It is the latter that is his full-time job.
One is hard pressed to list one or two judgments of the court delivered during Maraga’s tenure considered worthy of superficial curiosity or interrogation.
Despite the opportunities he had, Maraga failed to espouse or develop a sound theory of the law with a view to leave a legacy to be remembered by generations to come.
The sorry state of the Supreme Court can be explained in several ways. The court has seven members. Justice Smokin Wanjala had a good standing in academia before joining the court. Justice Mohamed Ibrahim was a reformist in the multi-party struggle. Justice Isaac Lenaola had a fairly decent career as a High Court judge. Justice Njoki Ndungu was a politician and activist. Apart from Deputy CJ Philomena Mwilu, the others had a higher public profile than Justice Maraga.
A CJ literally owns the Supreme Court and sets its pace and agenda. When he is the leader of the court in terms of intellect, integrity and force of personality, he takes it to dizzying, heights. When his abode is at the bottom of the pyramid, he takes everyone down with him.
During his tenure, Justice Willy Mutunga took the Supreme Court by the scruff of the neck and ran away with it. He transformed below-average judges to average ones, average judges to good ones, and good ones to brilliant judges.
Nullified election results
Justice Maraga was never expected to make the court great or progressive. He does not have the confidence and self-esteem to allow colleagues to shine.
That explains why during his tenure, the court failed to assert itself in debates that animated Kenyans. This is why Kenyans do not hear of the court and instead see too often Justice Maraga at a press conference complaining.
The 2017 presidential election petition provides another building block for Justice Maraga’s legacy. The election was conducted according to the letter of the law and with a level of transparency not seen in many developing countries.
The two main presidential candidates were Uhuru Kenyatta and Raila Odinga. With a gap of 1.5 million votes between the parties, nullifying the results required compelling legal grounds or brutal political calculation, to overturn the will of the people.
Justice Maraga and three other members of the court summoned such will and nullified the result. The judgment lacks the jurisprudential solidity, the explanations given by the majority of the court notwithstanding.
First, he would become an instant hero in Odinga’s political backyard and would be revered for his bravery in nullifying the election of a sitting president in Africa. The affection was too dear to be missed.
Judicial activism
Second, the NGO world especially the Kenya wing who thought Justice Mutunga betrayed them in 2013 will praise and adopt him as one of their own. Third, it gives him an international profile amongst certain players that he is an African with the courage.
Justice Maraga’s judgment could have been clothed with the admired but contested term of “judicial activism” with a view to give it a veneer of legal elegancy. But the judgment was too devoid of jurisprudential sophistication that clothing with that veil will amount to wanton pillaging of such a noble term.
The verdict led to a vesuvian eruption in the country and destroyed the working relationship between the Judiciary and the Executive. To be fair, President Kenyatta was more annoyed (and here I’m speaking as his lawyer!) about the court’s reasoning in nullifying the election result more than the nullification itself.
It was a hit-and-run judgment that rightly infuriated the President and his supporters. Justice Maraga cast himself as a hero amongst the three constituencies I have highlighted above. Self-centric interest came before justice to the parties.
The Supreme Court was unable to mount a powerful tour de force reasoning on why the election was nullified. Justice Maraga instead took the easy route and lavishly indulged in dressing personal sentiments in legal garment. The judgment’s lack of legal purity and clarity remains its defining and enduring feature.
Justice Maraga unlike any of his 13 predecessors made heavy weather of his religious beliefs and how that shaped his character and judicial philosophy. He wears his religion on his sleeve. Maraga wielding a copy of the Bible, shaking before the vetting board, swearing that he has never taken a bribe is the stuff legends are made of.
Uninspiring lecture
He even went to Oxford University and ended up giving a flat and uninspiring lecture on the role religion plays in his philosophy. Justice Maraga’s overt celebration of his religion is unsettling in the secular setting of the Supreme Court.
The last act Justice Maraga undertook as CJ was to write a nine-page letter to the President, advising him to disband Parliament for its failure to enact the two-thirds gender rule. The rule has a troubling history. The three courts of record have had their say on the matter and no quick fix is given.
Justice Maraga acting oblivious to the sentiments expressed by the Supreme Court on the conundrum posed by the rule opined that the President should disband Parliament. The petition before Justice Maraga required reflection and wise solutions on this troubling question. Despite the need to approach the issue with caution, Justice Maraga dispatched with speed his advice that Parliament be disbanded.
The public good or the need to force a solution on the players came a poor second to his goal to show that he was resolute when enforcement of the Constitution is in play. The former CJ does not reason through his advice or reflect on the best way to solve this enduring question.
Instead, he waves to the chanting crowd that is baying for the blood of Parliament. As with the presidential vote nullification, justice and national good came second to Justice Maraga’s need for public ululation.
Lastly, despite the runaway corruption at all levels in the courts and despite the fact that the Supreme Court has been mentioned, Justice Maraga kept his peace until his last few days in the office. He talked about corruption in the most general of terms.
Poor judge
It’s a tradition for CJs in Kenya to bark when it comes to corruption and bite little. Barking is good for it warns judges and magistrates and the public that the CJ is alive to the challenges corruption poses to justice.
Justice Maraga’s silence troubling. How come the former CJ did not prioritise fighting corruption in the Judiciary despite his high sounding moral attitude?
If he was sincere in his protestations about the sorry state of affairs in Kenya, where is his record and achievements in the fight against corruption? Why hasn’t he taken the trouble during his tenure to undertake a lifestyle audit of the judges? Why hasn’t he implemented processes and procedures that address the scourge in the Judiciary?
Despite limitations, Justice Maraga probably left an indelible mark in Kenya’s history. This he did, not because of a purposeful power of his pen as CJ but because of the political games he played.
Maraga had zero impact in making the Supreme Court or the Judiciary better than when he assumed office but left his mark in politics.
This he did because of his posture on political issues that split the country. Justice Maraga was a poor judge who compensated this deficiency by being a good politician. His past as a lawyer and judge are too insignificant to have made it into history as footnotes. By DAILY NATION