I will fight for the poor, says appeal judge during interview for top job

What you need to know:

  • According to the Legal Aid Act, Kenyans who can’t afford to hire an attorney, are entitled to one at the expense of the State.
  • Others entitled to a State lawyer are stateless people, children, refugees or trafficked persons.
  • Justice Maraga said he would introduce an email address to receive public complaints on the conduct of judges.

Court of Appeal Judge David Maraga on Wednesday said he will name a senior judge as the Judiciary ombudsman and revive the programme for helping the poor with court cases if appointed the new Chief Justice.

He told the Judicial Service Commission (JSC) that he would fast-track the implementation of the Legal Aid Act to ensure that justice is accessible to all.

“Kenyans seeking justice will not be locked out due to lack of money. I will seek funding for those seeking legal assistance but have no means to get a lawyer,” he told the interviewing panel at the Supreme Court Building in Nairobi.

According to the Legal Aid Act, Kenyans who can’t afford to hire an attorney, are entitled to one at the expense of the State.

Others entitled to a State lawyer are stateless people, children, refugees or trafficked persons.

In his first year in office, Judge Maraga said he would consult with the JSC and restructure the Judiciary ombudsman to be headed by a secretariat led by a senior judge.

He would also hire investigators to look into complaints against judges and magistrates with a view to helping to restore public confidence in the Judiciary.

The current Judiciary ombudsman is Mr Kennedy Bidali, a former magistrate, who rose to the post of registrar of the High Court before his appointment.

Justice Maraga said he would introduce an email address to receive public complaints on the conduct of judges, saying the use of suggestion boxes was outdated and ineffective.

CONTENTIOUS ISSUES

Attorney-General Githu Muigai and Prof Tom Ojienda questioned him on his understanding of contentious, contradictory or grey areas in the Constitution.

Prof Ojienda: “What are your views on lesbians, homosexuals and intersex people?”

Judge Maraga: “These are people, who have chosen that way of life. The law will deal with them as it is. The Constitution stipulates that marriage is between a man and a woman. It will depend on the issue at that time.”

Prof Ojienda: “Should the law be amended to accommodate intersexes?”

Judge Maraga: “These are issues the society should sympathise with. They did not choose to be born that way. Anyone can give birth to such a child. Surely, will you kill them?”

AG Muigai: “When met with gaps in law, what law should we turn to? Is it Law of Contract, Children’s Act or the Constitution? For example in a three-way custody dispute between a surrogate mother and a couple who chose to have the child but have gone their separate ways?”

Judge Maraga: “This ordinarily would be premised on contract, but you have to consider if it is legal or against public policy? You look at the issues and see how to resolve this, but the interests of the child remain supreme.”

AG Muigai: “When relatives of a patient in a vegetative state in hospital approach the court for guidance on who should switch off the life support machine, can the doctors switch it off?”

Judge Maraga: “Doing so would be assisted suicide, which is a crime. The Constitution regards life as sacred and even using euthanasia is illegal.

The judge was also asked to explain the jurisdiction of the Supreme Court and if it should hear election petitions other than the presidential petition.

He said the mandate of the Supreme Court should only be limited to presidential election petitions, while the Court of Appeal should be the final authority on other poll petitions.

Former Committee on the Review on the Constitution chairman Nzamba Kitonga will be interviewed by the panel on Thursday.