Sekou Owino: Maraga refused to be bullied by the presidency and Parliament 

It is more than a month since David Maraga retired as Chief Justice. The Judicial service Commission (JSC) will start interviewing candidates to succeed Maraga as the fourteenth CJ since independence and the second since the promulgation of the Constitution in 2010.

In a country obsessed with legacies, Kenya is asking what imprint Maraga left and what his successor should expect. There are questions about the person of Maraga and his influence and effect on the Judiciary as an institution, the law and on the country.

But to look at the legacy of the holder of an office of national significance within a month of the departure is a challenge. The reason for this would be that some think the short interval does not provide much time for proper reflection on the effect and influence a holder had on the office and the institution he led.

For that reason, any fair attempt at assessing the imprint of Maraga will require recognition that the CJ of any country is the holder of one title but a bundle of roles and responsibilities. 

The CJ is first a judge. This is perhaps is the most central role of the occupier. Thus, his influence must be judged mostly against his output as a judicial officer. 

In addition, the CJ is an administrator. In Kenya, the holder of that office is also the President of the Supreme Court; a member of the JSC and its chairperson, and therefore a policy-maker and enforcer for the Judiciary’s policies and norms. 

While being interviewed for the role of CJ, Maraga then a judge of the Court of Appeal, was clear that his introspective aim was to clear the backlog of cases and eliminating corruption.

The interview also revealed something about his approach to work many overlooked or did not fathom. That was his faith as a guiding component of his worldview and a bedrock of his approach to assignments. 

Divine responsibilities

He said his faith required rest on the day of worship and that he would be unable to assume judicial or other duties even if a presidential poll petition hearing were to coincide with the day. 

For a country obsessed with the role of the Supreme Court as being almost exclusively the determination of the presidential election petitions, this was bold and indicative. In other words, no human undertaking would supersede his divine responsibilities.

Thus, when Maraga became CJ on October 19, 2016, he took up more than the traditionally prescribed roles of that office.

Against the historical epoch of a Constitution just six years old, the CJ had additional responsibilities. The background was that the country was on a constitutional implementation phase whose steam appeared to have been dissipating – for two main reasons.

The 2010 Constitution is thought of as a radical endeavour to reorder the country’s governance away from the Executive and in favour of ordinary citizens and constitutional commissions.

The wielders of power under the old constitution were recalcitrant. Thus, the Executive had resumed its overbearing nature over other arms of government while Parliament had become indifferent or even an enabler in the reversal of fortunes towards the citizens.

The Judiciary was the only arm that stood between naysayers in the Legislature and the Executive bent on retaining the autocratic system. This trend was led by the fact that the Constitution placed the Judiciary at the epicentre of its implementation and against the known fact that citizens continuously sought answers to the essence of the constitution from the Judiciary. This was the Judiciary into whose leadership Maraga found himself CJ.

Disobedience of court orders

As CJ assuming office while the Constitution was being implemented, Maraga faced the expectation of driving an engine of reform. His predecessor had established a Judicial Transformation Framework which Maraga drove to full throttle with another structure he called Sustaining Judicial Transformation. In this framework, the brick and mortar aspects the reform, such as new courts and equipment, continued.

He would have expected as the Constitution commanded that the other organs of government would be partners in this. History and time had other ideas.

The country was not only facing an Executive that had expressed disgust at the Constitution and the clamour for its full implementation, there were open chants to the effect that the Constitution was too idealistic and conferred too much democracy –if ever that were possible.

Disobedience of court orders, particularly regarding declarations of violations of the Constitution, and by Cabinet Secretaries and the Executive was gaining traction.

This is the background against which the performance of Justice Maraga should be considered. After his four years and three months at the helm of the Judiciary, there is concern that Maraga did not herald an era of liberating jurisprudence.

Those who worry that the Supreme Court generates a minuscule of innovate jurisprudence despite the raw material of a liberating and fertile corpus of a constitution thought to be among the most progressive in the world may have a point.

But for presidential election petitions and other limited occasions; the Supreme is mainly a court of final appeal from other cases and with a tightly circumscribed scope of intervention.

Challenges Maraga faced

However, those who say this might be remiss in their understanding of the role of a supreme court in a republican democracy. Aharon Barak, a president of a supreme court elsewhere aptly puts it that the court is not meant to correct individual mistakes in lower courts.

The Supreme Court of Kenya receives on average less than 100 cases annually. A number of these are struck out for want of jurisdiction, meaning the court has no power to hear them. The Supreme Court’s field of play should be on the broader system-wide corrective actions that transcend the obligations of parties to that specific case.

In barely a decade of its existence, the Supreme Court has generated some trend-setting and intellectually invigorating decisions. Maraga was a part of them.

On the day of his retirement, Maraga signed off by being part of a Supreme Court judgment which established the right to housing for landless persons who have settled on public land.

“The right to housing need not be predicated upon title to land. Indeed it is the inability of many citizens to acquire land that condemns them to the indignity of informal settlement. Where the government fails to provide accessible and adequate housing to all, the very least it can do is to protect the rights to dignity,” he said. 

The court gave recognition to the rights of housing and divested the government from the perpetual response that there are no resources to give full effect to housing as a right.

The case also spoke to another of the challenges Maraga faced. That of  the disregard of court orders. In that case, the government had evicted people who had established informal settlements on public land in spite of an order prohibiting such eviction. Maraga and the court were again clear, that such actions undermine the constitutional order.

Thus, the jurisprudential imprint of Maraga in the Supreme Court might not be as heavy as would be expected, but not out of character for a tenure of barely four and a half years, the first of which was taken up by election disputes.

The phenomenon of court order disobedience arose from a history in post-independence Kenya where the Executive had always thought and acted, sometimes with connivance on the part of the Judiciary, that there was a hierarchy in the branches of government. 

In a book, former CJ Majid Cockar says there had always been the presumption by the Executive that it was the premier branch of government, with Parliament below it and Judiciary as the subordinate. The Judiciary was actually deemed to have been part of the Attorney General’s chambers with the CJ taking directions from the AG on how cases the Executive had an interest in should be decided. That belief was one which the 2010 Constitution sought to redress and which the Judiciary became more resistant when Maraga became CJ.

Constitutional truism

It was in his functions as the administrative head of the Judiciary that the public got to hear much of Maraga. This related especially to his role as the chairman of the JSC. In this role, he served as the Chief Engagement Officer of the Judiciary with the world. It is in this function that traditionally-minded detractors found Maraga’s approach unsettling.

Those who disagree with him claim he did not master diplomatic smarts in the engagement with “the establishment” a euphemism for the placation of and horse-trading with the Executive as a junior. In their view, the CJ would have realised more from especially Parliament and the Executive if he had been subservient. This is unfair, even compounded by illegality.

The reason is that Kenyans were used to, and the Executive and Parliament expected, a Judiciary that would accept the old order of a CJ who fell in line with the “historical reality”.
The Constitution and Maraga understood this, enshrined a separation of powers structure of parity between the branches of government. The Judiciary under the 2010 Constitution was a co-equal branch of government.

On more than one occasion, Maraga said the Judiciary was no less a carrier of the sovereignty of the people than the other branches of government. In fact, he once encountered crosswinds of disdain for having complained about the denial of finances for a vehicle of similar distinguished calibre as the heads of other branches of government.

It may have been impolitic to complain about a car, but it was reflective of the frustrations about the pork barrelling out of public resources that the other arms of government felt entitled to as of right while the Judiciary would have to plead for similar largesse.

Maraga insisted on this constitutional truism whenever he needed to engage Parliament or the Executive. Examples abound whenever he explained his concerns on the possible effect on the public about reduction of the Judiciary budget and its effects. This was not always welcome with those government branches, citizens and even advocates.

In May, 2020 , it was the turn of the Executive to get this public reminder on the separation of powers when the presidency issued a Circular on Organisation of Government, which purported to include the JSC and the Judiciary in a manner implying their subordination to the presidency. The response was swift. 

“An Executive Order cannot restructure or assign functions of the Judiciary or CJ,” Maraga said. 

For emphasis, he added this basic principle of constitutional law: The Judiciary is neither a ministry nor a government, which can be organised by an Executive Order.

Appointment of judges

Whatever one makes of the CJ’s tone, none of these engagements or outbursts as detractors preferred to call them were for his personal benefit. Rather they were in the ardour to get the Judiciary’s proper space in the constitutional rubric. These concerned the need to get resources to serve the public better and to ensure better functioning of society by the obedience of court orders.

An example is the gridlock with the President on 41 people recommended for appointment as judges. The President declined to make these appointments insisting that he had received information on the integrity of some.

The JSC and Maraga were unwilling to negotiate, insisting with the support of a court finding that the President had no role in sifting appointments recommended by the commission.

The other historical circumstances in which Maraga found himself in was one where the office he held had a supervisory mandate over Parliament in the implementation of the Constitution.

The Constitution stated that if Parliament failed to enact legislation required to perfect the implementation within certain timelines, then the CJ would on the petition of a citizen recommended to the President that Parliament be dissolved.

In the few months preceding his retirement, the CJ shocked Kenya when he made that recommendation. The reason was Parliament’s failure to enact a law to ensure constitutionally established ratios of at least one third representation for either gender in elective leadership offices. A Parliament used to vacillation and impunity at that so long as it was in bed with the Executive, was shocked and recriminations against the CJ came in troves. 

Finally, in assessment of the CJ’s tenure, I reiterate what he said while addressing the Oxford Union in 2019: “Judiciaries of Africa need to develop a critical awareness of the role they are expected to play in containing the emergence of authoritarianism.” 

He added that this requires unparalleled courage, unrelenting conscientiousness and unimpeachable integrity. He may not have achieved everything but CJ Maraga lived up to this.

The Judiciary and Kenya are better because of Maraga as CJ in that period. If there was to be a contest as to which of the branches of government and their heads were most committed to the rule of law and the implementation of the Constitution, the answer would be obvious: The Judiciary and David Maraga.