CJ Maraga confronted with burden of Mutunga's legacy

Chief Justice David Maraga is sworn in at State House in Nairobi on October 19, 2016. Mr Wambungu wants him out. PHOTO | PSCU

What you need to know:

  • Previous chief justices had taken traditional view that judges only speak through their judgements and that no judge, not even Chief Justice, has larger role in society outside of courtroom.
  • Justice Willy Mutunga came to office with style of leadership that saw him claim space within larger public sphere than that of the courtroom.

David Maraga took office as Kenya’s 14th Chief Justice last week, bringing an end to the search that the Judicial Service Commission had started for the replacement for Justice Willy Mutunga who retired two months ago.

The new CJ is confronted with the burden of the legacy that Justice Mutunga left behind. Before Dr Mutunga, all the previous chief justices had taken the traditional view that judges only speak through their judgements and that no judge, not even the Chief Justice, had a larger role in society outside of the courtroom.

Justice Mutunga came to office with a style of leadership that saw him claim space within a larger public sphere than the courtroom, spending significant amounts of his time on general outreach activities, as part of which he visited and held consultations with many segments of the society especially the urban poor, rural folks and civil society activists.

Dr Mutunga also established and maintained a robust presence in the media, and from time to time, found the courage to wade into controversial subjects, often lambasting the predatory behaviour of politicians. Dr Mutunga came to office while already active on social media, a habit that he maintained while in office.

The fact that the Judicial Service Act now mandates the CJ to “give an annual report on the state of the Judiciary and the administration of justice”, competing with the presidential state of the nation address, provided Dr Mutunga with a specific policy platform from which he could also do his speaking out. Also the CJ is now required to report annually to the legislature on the state of the Judiciary, a further platform that Dr Mutunga exploited to grow his public image.

NEW STYLE

While a public and legal profession that were not used to an opinionated CJ were at first uncomfortable with Dr Mutunga’s forthrightness, they seem to have goten used to this new style. By the time he retired from office, Dr Mutunga had become one of the most-sought after public speakers.

A general acceptance of the much larger role that Dr Mutunga has carved for himself is reflected by the fact that he is now being considered for international mediation roles, an area that is traditionally reserved for politicians.

Justice Maraga is not Dr Mutunga and will have to chart his own path. One quality that he shares with Dr Mutunga is humility and a down-to earth approach to things.

However, Justice Maraga is also different from Dr Mutunga who was already a public intellectual long before he became CJ. In this role, Dr Mutunga had become a significant organiser, co-founding the Kenya Human Rights Commission of which he later became executive director, and mobilising support for the enactment of a new Constitution. Although he has much disdain for them, Mutunga was comfortable around politicians. Justice Maraga is a more private person, and has a background of private legal practice before he was appointed a judge. Other than through the judiciary’s committee on elections, he has not played on larger public stages.

Justice Maraga inherits a badly divided Supreme Court, a situation that was caused by the internal wars about the retirement age applicable to judges, an issue on which two of the members of the court at the time had a court case.

In the end, the two, Justices Kalpana Rawal and Philip Tunoi, were forced to retire on the same day as Dr Mutunga. Although the retirement case has somewhat been resolved, the Supreme Court remains divided along the positions that its individual members took on the retirement case.

DEEPLY INVOLVED

Further, as the body that officially determined the retirement age, and which then had to defend the suits that were brought challenging the retirement decision, the JSC is deeply involved in the internal divisions in the Judiciary, roughly along the lines that the judges in the Supreme Court are divided. Naturally, the factions in the JSC will vie for the support of the new CJ and it will be interesting to see how he balances the pressure that comes from those divisions.

The Supreme Court is still not fully constituted, with a new Deputy Chief Justice still not confirmed and a new judge of the court yet to be appointed. The JSC has nominated Court of Appeal Judge, Philomena Mwilu for the position of DCJ.

Justice Maraga becomes CJ from the Court of Appeal rather than from the Supreme Court which has been the country’s highest court. This means that he will join and lead a group of judges to whom, until his appointment, he was inferior. There are issues of chemistry to be sorted out and much will depend on the personal tact that he brings to office.

Much also depends on how the incoming DCJ, Justice Mwilu, positions herself and also on who is selected for the final slot in the Supreme Court. Being younger than Justice Maraga, she would hope that she can become the first woman CJ after he retires. This may moderate how she carries herself if she is confirmed.

Justice Maraga is the second recent CJ to take office with clear religious beliefs. The first was CJ Evan Gicheru who, upon being appointed, convened a daily prayer session in his chambers. Soon a small group of fellow judges started joining him regularly. Justice Maraga will have to exercise judgment over how much of his religious beliefs he maintains in public office, without alienating those who do not share in his beliefs.