Before David Maraga, no Chief Justice publicly fought with the government. Until Willy Mutunga took office in 2011, all previous Chief Justices had been appointed by the President acting alone.
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Mutunga became the first Chief Justice to be appointed through a more participatory method introduced by the new Constitution in 2010, which involved interviews by the Judicial Service Commission that led to the nomination of a candidate for appointment by the President after vetting by the National Assembly.
While Mutunga did not exactly publicly quarrel with the government, like Maraga has done many times now, he was still unusually outspoken, something that greatly unsettled the Jubilee Party as they calculated their way to office the first term.
Under the previous Constitution, the President alone appointed the Chief Justice. While he also appointed the other judges following a recommendation by the Judicial Service Commission, members of the commission were themselves appointed by the President, creating a group of insiders appointing one another into these consequential offices.
Because the President was always likely to appoint the CJ from among the existing pool of judges, an appointment as a judge became a probationary job which, if performed to the liking of the President, could yield promotion to a higher judicial office, including as CJ. These barriers guaranteed that in the unlikely event that a maverick was appointed a judge, the path to becoming CJ was closed.
Mutunga and Maraga are the first two persons to become Chief Justice without the old sieving process having confirmed that they could not rock the system. Importantly also, unlike their predecessors who would arrive in office as Chief Justice from the relative obscurity of a career as a judge, the very process through which the two were appointed CJ necessarily gave them a high profile, and meant they arrived in office with a burden of expectations.
Secondly, unlike their predecessors, Mutunga and Maraga took office not only as CJ but also as President of Supreme Court. The Supreme Court is a political court the new Constitution established in a bid to clean politics of presidential elections by judicialising them. Having become CJ through a politicised process and expected to play a political role as president of the Supreme Court, no previous CJ had had these circumstances to define their reign.
Largely because of the circumstances, Mutunga arrived in office as the first CJ under the new Constitution, carrying a burden of expectations. If the controversial performance of his court in the 2013 presidential election petition defined his tenure, it also released Maraga, his successor, from the burden of public expectations, while also piling pressure on the remaining justices that Mutunga had sat with in 2013, to give a better performance if another presidential petition was to be presented to them.
While his arrival as Chief Justice was unheralded, Maraga’s annulment of the 2017 presidential election raised his stock and has now defined not only his tenure in this high office but also his relationship with the other branches of state. Promised a “revisit” after annulling the 2017 election, Maraga has faced a challenging time as Chief Justice both personally and also because he presides over an institution whose relationship with other branches of the state is damaged.
When, from time to time, Maraga publicly pours out his frustrations, this is a response to the pressure he must feel as a result of being presented, to his own Judiciary, as a problem to be rid of, if normal relations with the executive are to resume. He also speaks out in the hope of creating space for a public acknowledgement that the politicised mandate, the exercise of which has brought him into bad terms with government, was not his choice but that of the people when they adopted a Constitution that judicialised presidential politics.
Ostracised by the rest of the power pack, publicly vilified and personally humiliated including through vile and baseless allegations linking him to adultery -- particularly hurtful for a church elder -- this is the man in whose hands has lain the power to decide the future of a defaulting Parliament, whose possible punishment is dissolution.
Haughtily, the Speakers of the two Houses were dismissive of the CJ even when he held real power, making it impossible to sustain a constructive engagement. As part of the ostracism, Maraga has complained the President refuses to meet him. The establishment has since scurried to cover their being caught out. By claiming they were not consulted, although record shows the Speakers were. The establishment needs to discern Maraga’s role. He is only a messenger of the people.
- The writer is the executive director at KHRC.