As Chief justice David Maraga prepares to exit the bench next month, the race is on for his successor. Throughout his tenure, he attracted praise and criticism as the holder of any high office would. But what will be his legacy? Justice Maraga stood for an independent judiciary.
From the time he was appointed, justice Maraga made it clear that he was not a ‘government project’. There are, of course, those who opine that his stance was counterproductive, since it put the Judiciary on a collision path with the Executive, the result of which has been a crippling of the former’s functions.
To some degree, this is true. The public intimidation of judges by senior members of the Executive, Judiciary budgetary cuts, and the President’s refusal to appoint nominated judges were all likely, at least in part, a consequence of the bad blood between the Executive and the Judiciary.
Should the Judiciary then kowtow to the Executive’s whims to improve its prospects? Certainly not-that strategy is short-sighted and unsustainable. There is no limit to how far the Executive will go in abusing its powers if unchecked.
During President Moi’s regime, the Judiciary was so subservient that members of the Executive reportedly authored judgments and delivered them to judges for signing.
In 2007, for instance, barely five years after the Nyayo rule, ODM presidential candidate Raila Odinga, dissatisfied with the electoral process, decided not to challenge the election result, citing a lack of confidence in the Judiciary.
It was unheard of in Kenya -– in fact in Africa – that a court would rule against a sitting president. Well, this changed in 2017 when Justice Maraga led the Supreme Court in nullifying the re-election of President Kenyatta. Although that move earned the Supreme Court international acclaim for standing up to the Executive, at least some of the credit belongs to the 2010 Constitution. It stripped the President of powers to nominate judges, and gave the bench security of tenure.
This made them bolder as they were not beholden to the President or any member of the Executive. In 2011, just a year after the promulgation of the Constitution, the High Court declared President Kibaki’s judicial nominees unconstitutional.
That declaration, of course was met with some resistance but eventually, the President conceded and withdrew the list. The 2010 Constitution notwithstanding, it took a courageous court to issue the 2017 decision.
In 2013, the Willy Mutunga-led court faced with almost similar facts as 2017 but unanimously upheld the election result despite glaring irregularities, authoring a questionable judgment that has been roundly criticised by legal scholars.
In the aftermath of the 2017 decision, Justice Maraga has had to weather constant attacks from the Executive, sometimes at a personal cost. But securing the independence of the Judiciary is of utmost importance, not least because it guarantees public trust in the system.
The chaos that Kenya descended into following the disputed 2007 polls is a testament of what could happen when citizens lose trust in the courts.
As Maraga retires, his enduring legacy will be the independence of the judiciary. But is it a quest that demands constant vigilance from all stakeholders.
Newton Arori, Nairobi