Chief Justice David Kenani Maraga finally bid the Judiciary goodbye this week. As the Judicial Service Commission gets into successor-hunting season, it is important to review the tenure of our second Chief Justice since the promulgation of the 2010 constitution.
Understanding Justice Maraga’s tenure will point to the qualities of the person that should succeed him and serve as an early warning on the pitfalls on the road ahead. Without doubt, Judge Maraga had a tumultuous term, unlike Justice Willy Mutunga’s comparatively tepid tenure. Justice Maraga will be remembered by his foes and his admirers very differently.
To those who admired him, the judge was a courageous leader, motivated solely by doing justice in accordance with the law. They will cite his leadership of the bench that annulled the presidential election, a hitherto unimaginable feat in the continent which has since been followed by Malawi.
This decision, they will argue, restored people’s faith in the rule of law and affirmed the position that the Constitution is supreme over all including those who occupy the highest offices in the land.
They will cite his advisory on disbanding Parliament for failing to comply with a constitutional edict.
In this act, it will be argued, the CJ (pictured) affirmed the supremacy of the Constitution over Parliament which has been known to act rogue despite the restraints put on it by the law.
His supporters will define him as a conscientious God-fearing man who did a good job, only at the wrong time. His detractors will see him differently. To them, he failed the test of leadership through recklessness and activist decisions and public pronouncements.
They will quote the same nullification of the presidential election saying that in this single act, he put the Judiciary in an avoidable, unnecessary and unwinnable war with the Executive. They will quote his advisory on disbanding of Parliament as a positivistic approach to dealing with complex social-legal issues without providing solutions.
I believe the truth about the Chief Justice is more nuanced, and not fully defined by these extremes. Anyone who has interacted with the CJ in his long tenure as a judicial officer will agree that he is one of the most decent and conscientious judges that has strode the judicial corridors.
He was a man of an undeniable strong faith which he put in full display during his interview for CJ. His integrity has never been in question despite dealing with many “lucrative” cases in his long tenure in the courts.
He is also courageous, and has never shied off tough decisions once he believed in the justice of the cause, consequences be damned.
While not Mutunga’s intellectual equal, he was a solid thinker with many well-reasoned judgements under his belt. But these positives were also his Achilles heel as a Chief Justice.
In the first instance, the office he occupied requires the delicate and sometimes diplomatic management of law, politics and government.
It does not lend itself well to fixed and set positions, especially on non-principle issues. It requires occasional stretching of the law to accommodate political realities.
Secondly, the management of an office like that of CJ requires easy social relationships across the leadership spectrum. It may call for the occasional Friday evening tete-a tete over a merlot where delicate issues of governing can be discussed off the pressure of public view.
This was not Judge Maraga, a man who was more comfortable in his church than socials, especially of the single malt kind.
What then should the CV of his successor include? Without doubt we need a person of, at least, equal intellectual acumen. We also need a person of absolute integrity. Our last two CJs set the standard.
We need a person of courage; being the arbiter between the Constitution and politicians requires mettle.
But we also need someone with Solomonic wisdom, who knows which fights to keep off for the greater good.
We need someone with the diplomatic skills to walk the tight rope of managing political dynamics while not sacrificing the Constitution. Does Kenya have that person? The next six months will tell.
-The writer is an advocate of the High Court of Kenya
