CJ David Maraga must secure the independence of Judiciary

Most senior public officials – especially those identified with Jubilee – often talk and act as though Kenya has no Constitution. These men and women think Kenya is a legal jungle where only the strongest – those with ill-gotten loot and are politically connected – survive.

The great tragedy of the republic is that these mandarins are right. They’ve often proven this point, which is anchored in impunity, much to the chagrin of both the “little” mwananchi and the country’s constitutionalists. No one should be shocked. Many of these Jubilee anti-constitutionalists – anti-democrats – opposed the 2010 Constitution. This is the most pressing question now – will Chief Justice David Maraga stand up to them, and put a halt to their brazen attacks of an independent Judiciary?

Kenya’s political establishment has many hotshots who suffer from a disease called hubris. It’s a malady that swells one’s head with the deception of their importance and pedigree. What shocks the conscience is that most of these folks are ill-educated and poorly-mannered. The only things that recommend them are looted wealth and political connections by birth or proximity to power. Most of them could never individually succeed in a meritocracy. That’s why they husband the imperial executive because they know they can’t make it in a transparently accountable system. This is the root cause of Jubilee’s hatred for a restrained state cabined by the Judiciary. Speaker Justin Muturi and Majority Leader Aden Duale inhabit the head of this snake.

I have not publicly commented on the substance of my interview for Chief Justice last September. Nor will I do so in any length here. But I found one line of questioning strange. Those who watched the interview must have seen the inordinate time spent on interrogating me on my view on whether I recognised Uhuru Kenyatta as President of the Republic of Kenya.

Head of State

The question was a head-scratcher because I am not the one vested with the constitutional authority to recognise any individual as the president of the republic. That power lies in the IEBC and the Supreme Court through the people. Nor can the IEBC or the Supreme Court decisions render nugatory my personal opinion or legal view as a jurist. The essence of Kenya’s constitutional architecture and the concomitant jurisprudential logic render moot the question of my recognition of the Head of State. My conscience takes complete precedence – I can’t be compelled as a private citizen to recognise any person for the office president of the republic. Secondly, and equally as important, I can’t be compelled as a judge of the Supreme Court or as the republic’s Chief Justice to legally recognise the Head of State. Let me illustrate. Given what I knew then – and still know today – I would have ruled as Chief Justice in 2013 that Mr Kenyatta wasn’t validly elected as President of the Republic of Kenya. I would have dissented from the majority.

My dissent would not have made me a traitor or unpatriotic. That’s because my dissent would have been made in the normal cause of discharging my constitutional duty of adjudicating the presidential petition. Nor would I have thought the majority would’ve been unpatriotic or treasonous in ruling for Mr Kenyatta. That’s how the law works in a democracy. My dissent wouldn’t have prevented me as CJ from with working with Mr Kenyatta and the executive that he heads. That’s because the CJ doesn’t work for – or under – the Head of State.

He or she heads a totally independent arm of the state whose purpose is to safeguard the Constitution and the rule of law. The courts check the executive and the legislature. I only give my example to demonstrate how a simple constitutional principle can be misunderstood by the constitutional body entrusted with the authority to interview and recommend judges, including the Chief Justice, for appointment.

Reign supreme

Speaker Muturi and Majority Leader Duale aren’t the only ones who harbour illusions of an imperial presidency. But this is where CJ Maraga comes in. He’s now the head of the JSC that vetted him and me. In that role, he must leave no doubt – both to the JSC and the legislature – that judges and the courts aren’t subject to either the executive or the legislative arms of the state. He must speak loudly – and clearly – and his voice must be heard in Kenya and beyond. Kenyans know the state behaves as though public officials have untrammeled power. We see this behaviour everywhere – among law enforcement agencies, especially the police, in the bureaucracy where impunity, corruption, and tribalism reign supreme, and in the legislature where pot-bellied potentates act as though we live in a jungle. It’s only the civil society and the Judiciary that stand between the tyranny of the state and the people. That’s why CJ Maraga must firmly and decisively check establishment hubris.

- The writer is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC. @makaumutua.