David Maraga's bold but troubled tenure ends

Mr David Kenani Maraga, the advocate from Nakuru who rose to the helm of the judiciary, is set to go on terminal leave today pending his retirement as the Chief Justice after 42 years of a coloured legal career. 

He was the 15th person to serve as CJ since Kenya’s independence, but the second to be president of the Supreme Court, after Dr Willy Mutunga since the promulgation of the 2010 constitution.

But the CJ is currently the only person who has ever presided over a bench that has nullified a presidential election in Africa. He nullified President Uhuru Kenyatta’s re-election following the August 2017 vote.

Officially, Mr Maraga, who turns 70 on January 12, is supposed to go on leave on Tuesday next week. He has however indicated that he does not intend to be in office for the last two working days of his long career. He began as an advocate in 1978 and practiced for 25 years before being appointed as a judge of the High Court in Mombasa in 2003.

His last official assignment as CJ today will be the commissioning of an anti-terror court at the Kamiti Maximum Prison. He will then have a lunch with the Senior Counsel bar on Tuesday before exiting without fanfare but he will leave a judiciary that has demonstrated that it not only barks but can bite as well.

Final bombshell

Loved and hated in equal measure, Mr Maraga has cultivated an image of a CJ who pulled no punches. Defiant to the end, Mr Maraga, a man of several firsts, spent his last two years criticising President Kenyatta at every opportunity for sidelining the judiciary. His final bombshell was when he advised the president to dissolve Parliament over its failure to enact a law on gender balance.

On Monday, he reminded MPs that refusing to allocate the judiciary enough money was not affecting him personally but their voters.

“Someone says Maraga wants money, for what? For my personal use? No! We want to build courts for Kenyans. Is that a bad thing?” Mr Maraga asked.

“These same MPs are always in my office asking me to open courts in their areas. I am telling you, if they passed between Sh5 billion and Sh10 billion for development of the judiciary, then all areas would have courts,” he said in his home county, Nyamira. And as he leaves office after four years, the jury is still out on how Mr Maraga, a devout Christian and church elder, has performed as CJ. However the nullification of the Presidential elections of 2017 stands out as the moment when the judiciary under his rule really pronounced itself as an independent arm of government and as a defender of the law.

Before then, it was unprecedented in Africa for a challenge by any opposition party in court against the results of a presidential election to succeed.

“The greatness of a nation lies in its fidelity to the constitution and strict adherence to the rule of law and above all the fear of God,” said Mr Maraga while reading the ruling that ordered a fresh election that Orange Democratic Movement (ODM) party leader Raila Odinga boycotted handing President Kenyatta an easy re-election.

Public relations assignment

But in many ways, Mr Maraga’s achievements and shortfalls somehow mirror those of his predecessor Dr Mutunga, who was considered an outsider when he took over in 2011. However, where the outgoing CJ has really stood out is his firmness in the face of an executive keen on cutting him down to size, reducing the backlog of cases in the corridors of justice and an attempt to digitise court processes.

“We must all recognise that the job of CJ is not a public relations assignment, whereby all parties to a dispute must agree with him, or like him for that matter,” says Senior Counsel Philip Murgor while commending Mr Maraga’s performance, adding: “The test for a successful CJ is that he must be and appear to be independent of special interests and partisan or political alignments.”

As CJ, Mutunga’s term, though chaotic towards the end, was characterised by expansion of the judiciary in terms of infrastructure and human resources. He also protected the independence of the judiciary from an overbearing executive.

All this he did from a distance while trying as much as he could not to directly confront the executive. However when the heat became too much, Dr Mutunga opted to retire one year before his official retirement date.

“If you compare the two, Maraga and Mutunga, the former CJ completely kept off the executive,” says Prof Tom Ojienda, a Senior Counsel who has sat with both Mr Maraga and Mr Mutunga at the Judicial Service Commission and was part of the panel that recruited the outgoing CJ.

“But for Maraga, his relationship with the executive has been contradictory. We have seen him appear in political rallies and the next day he is at war with the executive,” says Prof Ojienda. But it was towards the end of his tenure that the judiciary really pronounced itself.

This came through a ruling that completely altered the way his successor was to be chosen and on May 25, 2016, just three weeks before Dr Mutunga’s retirement.

The High Court declared unconstitutional amendments to the Judicial Service Act that would have given the President powers to nominate the CJ from a list of three nominees sent to him by the JSC.

With Mutunga retiring, the Jubilee administration, knowing too well that the 2017 presidential election was just like 2013 one likely to end up at the Supreme Court, used its numbers in parliament to push for more influence on who would be the next CJ. Before the amendments, the JSC was mandated to submit only one name. Angered by the move, the Law Society of Kenya (LSK) filed a case at the High Court.

In their ruling, Justices Richard Mwongo, Weldon Korir, Mumbi Ngugi, George Odunga and Joseph Onguto said allowing the amendments would violate the doctrine of separation of powers and the procedure stipulated in the constitution on how holders of the office should be appointed.

“The amendments, if allowed, will amount to taking the people of Kenya back to the old process of appointment by the President, which they discarded when they enacted the new constitution,” they said. With that, President Kenyatta’s hands were tied when the JSC presented Mr Maraga’s name ahead of 14 top legal minds that had applied for the job. During his interview, Mr Maraga swore by the bible that he had never taken a bribe and would not preside over a case on a Saturday even if his job depended on it.

With his appointment as CJ, the selection of Mr Maraga who was the then presiding judge of the Court of Appeal in Kisumu appeared like the state machinery had succeeded in handing over the judiciary to a ‘safe’ pair of hands.

The suspicion of him being a project of the state increased in the run up to the 2017 election when President Kenyatta, while campaigning in Kisii, told residents that he had appointed one of their sons to head the judiciary even if they did not vote for Jubilee.

“I have appointed many members of the community to big positions in Government yet you overwhelmingly voted for the opposition in 2013,” he said.

The JSC immediately issued a rebuttal saying the President’s claims were “unfortunate, erroneous and substantially misleading to the public”. The claims were a few months later put to rest when the Supreme Court nullified President Kenyatta’s election.

Several confrontations

From then on, the CJ would have several confrontations with the executive characterised by back-and-forth accusations between him and President Kenyatta. While the President accused the judiciary of being a hindrance to his war on corruption, the CJ said Mr Kenyatta was being dictatorial.

The tiff would end with President Kenyatta refusing to appoint 41 judges. The judiciary also started getting budget cuts and Mr Maraga would often accuse the executive of impunity for not following court orders.

But even as he fought with the executive, Mr Maraga, as promised when he took office, managed to reduce a case backlog in the courts from over 300,000 2016 to 35,359 at the last count in June.

He also greatly expanded the number of courts and digitised court processes, which has been scaled up during the Covid-19 pandemic period.

Today, court hearings and judgments can be given digitally which reduces the need for parties to appear physically in court. He however leaves a divided Supreme Court and a serious fight at the JSC over the recruitment of his successor.

Activist Okiyah Omtatah has filed a case challenging the automatic ascension into office as acting CJ by Deputy Chief Justice Philomena Mwilu after January 12. But Mr Maraga, who has since sent a reconciliatory message to President Kenyatta, has asked Kenyans to pray for whoever will succeed him.

“Start praying for them right now. The job of a Chief Justice is very difficult,” he said in Kisii after opening the Manga Law Courts on Monday.

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