Maraga must clean up Judiciary, steer reforms

The approval of Lady Justice Philomena Mwilu as Deputy Chief Justice marks the end of the delicate process of filing up the Supreme Court. It is now up to the court to define its place in the pinnacle of Kenya’s Judiciary and improve on the Mutunga legacy. Anyone who is a keen watcher of the goings on in the Judiciary will confess that other than Justice Isaac Lenaola, the other two appointees, Chief Justice David Maraga and Deputy Chief Justice Mwilu were a total surprise. If bookmakers had been placing bets on who would replace Justice Willy Mutunga the winning names would have included Justice Smokin Wanjala, Justice Mbogoli Msagha and probably Justice Alnashir Visram. The Judicial Service Commission (JSC) definitely surprised; fortunately, not negatively. Once he was announced, most Kenyans conceded that Justice Maraga was a good choice for several reasons.

Firstly, he is one of the few judges against whom there has been no claim of improbity despite serving for a long time. Secondly, he’s had the benefit of having practised in the bar and the Judiciary. The latter is particularly useful in view of the unfortunate bad blood that has persisted between the Court of Appeal and the Supreme Court. He’s been a Principal judge in some of the busiest stations in Kenya including Mombasa, Nakuru and Kisumu where he performed with distinction. He may not be an intellectual giant of the likes of Justice Smokin but he is no midget, if one reads his judgments in some of the more controversial cases. He is a principled judge and was even willing to place his faith in consideration during his interview, most Kenyans avoid making their private faith public in such circumstances.Critically, in a country where we see the Supreme Court through political eyes, he is viewed as politically acceptable to the main contestants in the political terrain.

Now, if Justice Maraga was a surprise, Lady Justice Mwilu our new Deputy Chief Justice, was a shocker. In her several years as a Judge of the High Court and the Court of Appeal, not much has been known of the Judge. She has issued no famous landmark rulings and until the JSC interviews few outside legal circles knew of her. It is only at her interview that one was forced to give her a second look after she gave a pragmatic and well considered view on polygamy. Clearly she impressed the panel and her performance in her elevated post will hopefully put to shame those who were underwhelmed by her.

While the two principal tickets in this process were surprising, Justice Lenaola was not. This affable and easygoing judge was definitely a favourite across the board. Not only does he possess great intellect, he is one of the more progressive judges in the entire Judiciary. He has delivered a large number of landmark rulings including the one on Muthurwa evictions which I am aware informed changes in the statute law on evictions. He will be missed in the constitutional and human rights division where he was known for giving very progressive but pragmatic and fair decisions on a wide array of controversial questions. At the young age of 49, Justice Lenaola has a great future in Kenya’s Judiciary.

What next then for the Supreme court and the Judiciary generally? The delivery of justice has been struggling and complaints of long delays in concluding cases abound. The administrative reforms started during the Gladys Shollei days have faltered and one hopes Chief Registrar of the Judiciary Beatrice Amadi will now have the support she needs to hasten outstanding reforms.

Corruption may have been bruised but it is definitely still lurking in the shadows of the Judiciary, rearing its head every so often. Public confidence in the Supreme Court which waned after the post presidential petition political bashing must be restored and the sibling rivalry between the two apex courts must be quashed with utmost haste. The Judiciary must be seen to work together and the camps that had started to flourish in Mutunga’s final days must be buried. Judge Maraga has a tough job ahead and he will be well advised to not show his hand too early. We wish him God’s wisdom in shepherding this most critical institution in our governance structure.