CJ a good judge but bad politician

From left: President Uhuru Kenyatta, Chief Justice David Maraga and Senate Speaker Ken Lusaka at the Supreme Court building on January 23, 2020.

Photo credit: File | Nation Media Group

What you need to know:

  • The President of the Supreme Court is a judge, but the Chief Justice is a quasi-political office.
  • Mr Maraga issued the order not as a judge, or President of the Supreme Court, but as the Chief Justice.
  • Maraga has at times thought he could kneel before Kenyatta to gain favours for the Judiciary.

The “edict” by Chief Justice David Maraga to Jubilee’s Uhuru Kenyatta to dissolve Parliament is akin to exploding a nuclear weapon on a hapless civilian population.

It speaks volumes about the poverty of intellect and vision among Kenya’s elite and ruling classes. However, it also reveals a fundamental congenital dysfunction in the person of Maraga himself – the man is a good judge, but a terrible politician.

Maraga often forgets he occupies one office with two hats. The President of the Supreme Court is a judge, but the Chief Justice is a quasi-political office. It means Mr Maraga shouldn’t conflate the two hats, which he did with the dissolution “order”. That’s why the order has landed with a thud.

Let’s briefly reprise the facts. Chapter Four of the 2010 Constitution is the commanding anchor of the national charter. It trumps everything else, including other parts of the Constitution, should there be any inconsistency. The Bill of Rights provides ironclad declaratory and compulsory obligations and entitlements. They are generally not subject to negotiation and are largely non-derogable.

The Bill of Rights wasn’t subtle about the legal nature of those obligations. It repeatedly, and unambiguously, used the term “shall” as a mallet of compulsion directed at the obligors to remove any discretion.

Gender rule

The framers in Article 27 (8) of the Constitution directed the “State” to take “legislative and other measures” to make certain that not more than two-thirds of the members of one gender “shall” make up any “elective or “appointive” bodies. The nomenclature used throughout is “shall” and not “may” or “ought” or “should”.

It’s a command of the sovereign, who in this case is the people of the Republic of Kenya. Ten years later, the Legislature and Executive have refused to enact the necessary measures to realise this constitutional mandate of the two-thirds gender rule. This is in spite of the ruling by Justice John Mativo in 2017 that Parliament stood to be dissolved prematurely for the failure.

It’s to the lasting shame of the Supreme Court of Kenya in the 2012 advisory opinion that a majority of the justices held the two-thirds gender rule wasn’t urgent and could be implemented progressively. Shockingly, Justice Njoki Ndung’u, a one-time feminist and human rights advocate, joined the majority in that infamous denial of constitutionally enunciated women’s rights. CJ Willy Mutunga, in what I regard as his hallmark moment on the court, broke with his “learned” colleagues and wrote a strongly worded historic dissent.

The former academic argued that the constitution wasn’t vague, or uncertain – that it compelled the state to implement the two-thirds rule immediately, and no later than the 2013 elections. It was a sterling repudiation of the court’s conservatives. 

It’s clear to me that the political elite in the executive and legislature latched on to this misbegotten advisory opinion to foot-drag.

Dissolution order

Let’s not forget that in Naivasha, the drafters of the 2010 Constitution begrudgingly included the two-thirds rule in the final draft. That’s why the language of Article 261 (7) doesn’t lay out a roadmap and timeline for it’s implementation.

 Nor do other provisions where the rule is spelt out. Misogynists and apologists are using this lack of an explicit procedure and timeline to attack and blunt Maraga’s dissolution order. They are anti-women who are hiding under a nonsensical pretext to justify a naked constitutional illegality.

My problem with Maraga isn’t with his dissolution order, or its validity, but with the manner in which he’s dealt with the executive and the legislature throughout his tenure, including in issuing the order. Mr Maraga issued the order not as a judge, or President of the Supreme Court, but as the Chief Justice.

As CJ, he was performing a quasi-political function as head of the third arm of the state. First, he waited too late in his tenure to drop an unexploded grenade on Kenya. His timing was bad. He’s a lame duck whose voice is now muted. Second, as CJ, he should’ve widely engaged in public consultations before pulling the trigger.

Maraga has at times thought he could kneel before Kenyatta to gain favours for the Judiciary. That didn’t work, especially after the 2017 ruling nullifying the election. Kenyatta only became more recalcitrant. However, he’s not alone in his duplicity in the legal profession.

Senior lawyers have been twisting themselves into pretzels to discredit his dissolution order by arguing – incredibly – that Kenyatta should construe the word “shall” to mean “may” and, therefore, disregard Maraga’s order. That’s shameful – senior lawyers shouldn’t prostrate themselves before any potentate to justify an obvious illegality.  Maraga did the right thing, but in the wrong way.

  @makaumutua.