Katiba 16: Why Maraga says Parliament has failed Kenyans

Former Chief Justice David Maraga.[File, Standard]

Former Chief Justice David Maraga has warned that Kenya's Constitution is under siege from what he called incessant violations, saying those seeking to undermine it are "working overtime."

Maraga, now the United Green Movement's declared 2027 presidential candidate, made the remarks in a statement on Thursday, August 27, marking 16 years since the promulgation of the 2010 Constitution.

"Sixteen years ago, Kenya promulgated a new Constitution. It was not a gift from the powerful, but a hard-fought assertion of our sovereign will, the victory from years of struggle," he wrote.

Maraga urged Kenyans to exercise greater vigilance ahead of the next General Election, saying their choice should be guided by constitutionalism and the kind of country they want to build.

He described the vote as a test of the country's commitment to constitutional governance.

"It will be a referendum on the kind of country we desire, a choice between those who believe in constitutionalism as the framework for our shared security and relics of a resurgent past of despotism dressed in the form of progress," Maraga observed.

"Kenyans must approach that choice with the same clarity and courage that produced the Constitution in the first place," he added.

Protections in the Bill of Rights and the requirement for public participation, according to Maraga, have been eroded through cosmetic implementation and repressive actions.

"The Bill of Rights and the provision for public participation are the soul of our supreme law, the built-in mechanisms by which the framers sought to guarantee limited government and an accountable state," he noted, adding, “Yet these very protections continue to be eroded through cosmetic implementation and repressive actions."

The former CJ cited criminalisation of dissent, disregard for court orders and treatment of public participation as a formality, rather than a constitutional obligation, as threats to the Constitution's implementation.

He also criticised Parliament, arguing that the institution has regressed from its oversight mandate over the Executive.

"An institution meant to scrutinise, question and, where necessary, restrain the Executive has regressed from oversight to acquiescence," he warned.

Weakened accountability institutions, Maraga argued, have created room for executive overreach and what he termed state capture, where public bodies serve narrow interests rather than the sovereign people.

"The result is a widening space for executive overreach and, more gravely, the entrenchment of what can only be described as state capture, where public institutions serve narrow interests rather than the sovereign people in whose name they exist," he explained.

The burden of protecting the Constitution, Maraga stressed, does not rest with institutions alone.

"When the institutions designed to hold those in power accountable fail, the burden shifts back to citizens, civil society, the Judiciary and to every Kenyan, because constitutionalism is not self-executing," he added.