Challenges and opportunities that stare Chief Justice Maraga in the face

Congratulations to Justice David Maraga on his appointment as Chief Justice! I welcome him to the burning crucible of the Judiciary.

The position of the Chief Justice is both a prestigious judicial seat and a powerful political office. Balancing the two roles with one eye on a lasting legacy and the other on verifiable deliverables is a task that awaits the new CJ.

Justice Maraga should be under no illusion that he has many enemies both within the Judiciary and outside it who will conspire against him and try to make him fail. He also has an equal number in friends and well-wishers who want him to succeed. But he also faces the giddy expectations of Kenyans, which are sky high. He applied to become CJ alive to these challenges. He was given the job having been found to be up to the task. Let the action begin!

Justice Maraga has a very short period to execute his agenda and deliver for the people of Kenya. His term is a mere five to six years. He has what it takes to make a mark and leave a memorable legacy. His experience as a legal practitioner, coupled with the fact that he went through the judicial ranks, prepares him very well for the tumultuous task ahead. This, coupled with an affable and disarming personality, wrapped with steel-like determination and missionary zeal, should come in handy in helping him navigate the choppy waters of the Judiciary and the larger politics of the country.

So what are the challenges and opportunities that stare the CJ right in the face? There are many, and I am sure he has a detailed white paper on the same. But I have a few issues he can add as addenda.

The new CJ must address Kenyans and share with them his judicial philosophy and what they can expect from him. In my view, he needs to do that within his first 100 days. He must share his vision and allow Kenyans to understand his philosophical DNA. He must tell Kenyans, for instance, what the Maraga Supreme Court will stand for. What is his philosophy on judicial independence, the rule of law, devolution, human rights, constitutionalism and other burning issues of the day? Kenyans expect him to provide firm leadership in the justice sector and he must jealously protect that space.

DOMINEERING EXECUTIVE

The biggest challenge he faces is from a domineering Executive and a marauding Legislature. The CJ should know that judicial independence from the other arms of government is not negotiable and Kenyans will not allow him to compromise on that. His predecessor, Dr Willy Mutunga, defined and delineated the contours that demarcate the relationship between the three arms of government. Nobody wants simmering wars between the three arms of government. But Judge Maraga should know that when the Executive and Legislature say they want to have a “cordial relationship” with the Judiciary they mean a subservient Judiciary that second-guesses their positions on the burning questions of the day.

Kenyans have shed blood for an independent and proud Judiciary. The Constitution protects that. Chief Justice Maraga is well-advised not only to keep his distance but to be eternally suspicious of the other two arms of government. A motley collection of self-serving second-tier political operatives and some powerful judges who claim to be the Executive’s viceroys to the Judiciary pose another challenge to the new Chief Justice. This group purports to act in the name of the President and claim to have a roving mandate. They fought pitched battles on many matters with his predecessor and pose an existential threat to judicial independence. They want to influence not just politically-sensitive cases but also appointments to the Judiciary and even have say on the day-to-day running of the courts. Political operatives are outside his mandate but Justice Maraga must deal decisively with judges who have become part-time political operatives.

Justice Maraga is also the president of the Supreme Court and will chair its sittings. Here, he has two challenges. First, he must prepare the court for the all-important presidential election petition in 2017. It is not certain that a suit will be filed, but there is a high probability. The Supreme Court has three new judges who did not sit in court when it heard the petition filed by Mr Raila Odinga in 2013. The politics of the country has since changed. It is very important that Justice Maraga adequately prepares his court for a case that may define his legacy and has the potential to change the political trajectory of the country.

NOTABLE SUCCESSES

The Supreme Court had some notable successes under the leadership of Dr Mutunga. However, it was greatly undermined by factors that Judge Maraga must address. First, it has an unenviable reputation of a court that usurps powers it does not have, breaches the Constitution routinely and has the guiding legal philosophy that it is above the law. Second, apart from electoral laws, the Supreme Court has failed miserably to express itself eruditely and elegantly in critical areas of law like constitutional interpretation. Third, the court is divided along political lines and external players exercise covert control over some members.

Access to justice is important to the people of Kenya. In terms of infrastructure, the Judiciary has massively expanded under the watch of Dr Mutunga. CJ Maraga should adopt an important facet of the right to access justice. He must improve on the quality of the justice that the Kenyan people must access. And the best way to provide quality justice is to make it efficient and corruption-free. Fighting corruption in the Judiciary should be a priority for him.

Lastly, he must never lose sight of how he wants history to remember him. Five years from now, when he will be retiring, Kenyans will want to celebrate his tenure and achievement and fete him. He should emulate the dignified exit of his predecessor and avoid the indignity that former Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi faced when they were forcefully removed.

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