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Cover Story

Maraga might be the stone that the builders rejected

Volume 14, Issue 2  | 
Published 27/10/2017
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David Maraga, the future Chief Justice of Kenya, gave me my first job at his law firm in Nakuru, when I qualified as a lawyer in the early 1990s. At that time, corruption had engulfed the judiciary and was choking private legal practice.In Nakuru, cartels of lawyers and magistrates had privatised the courts, so that only those lawyers that were part of the cartels ever got hearing dates in court. In return, magistrates would expect a share of whatever money they awarded as damages in court.

HARD RIGHT

Bowry, Maraga & Co, for that was the firm under which Maraga practised, had a reputation as one of the few law firms in town that chose the hard right, refusing to join the cartels, rather than the easy wrong.Of course, their practice suffered, but they were prepared to do it the hard way. More recently, Maraga has been a Judge of the High Court before he was promoted to the Court of Appeal, and lately, he is the Chief Justice of Kenya. As a Judge of the High Court he had a good record, and is now regarded as one of the foremost authorities on electoral law, a subject on which he has also done some writing. It is also an area in which none of his decisions has ever been overturned on appeal.

LEADERSHIP

Maraga became Chief Justice after the retirement of the memorable Willy Mutunga who, as the first Chief Justice selected by the Judicial Service Commission, as required by the country’s new Constitution, rather than by the President as had been the case before, became something of a media star, and developed a kind of social and political clout that is more usually associated with politicians, rather than judges.

As Chief Justice, Mutunga brought a new style of leadership in the judiciary that was a break from the conservative traditions that are associated with the legal profession.As the immediate successor, Maraga has struggled with whether or not to continue with the approach or to go back to the more traditional way of doing things. When he emerged as the surprise choice of Chief Justice, among candidates that some quarters viewed as having done better in the televised interviews than him, questions were asked about how the JSC got to pick Maraga for appointment as Chief Justice.

CONSERVATIVE

It appears that one of the selling points for Maraga’s candidature was the fact that, as a serving judge, he was an insider in the judiciary, a contrast with the situation that faced Mutunga who, at the time of his appointment, was not a member of the judiciary and had no previous judicial experience. In this sense, Maraga’s appointment was viewed as a rejection by the JSC of the liberal style that Mutunga had brought to the judiciary, in favour of a more conservative approach.

One thing that was unusual about Maraga at the time of his appointment is the fact that he wore his religious beliefs very loudly. A member of the Seventh-Day Adventist Church, Maraga made it clear during his interview that he would not work on Saturday as to do so would be a violation of his religious duty to keep this day holy, being his Sabbath.

During the recent hearing of the presidential election petition, a case that must be heard and finalised within short and inflexible timelines, Maraga’s religious beliefs were put to the test and survived.

HEARING

For this to happen, the court had to convene its first hearing after nightfall on a Saturday, which marks the end of the Sabbath. Also, the judgement of the court was not made on the last possible day, as this fell on a Saturday, but was, instead, read the previous day, being a Friday. All day before the evening on which the Supreme Court convened its first hearing at night, Maraga had been at his local church in Nairobi where an annual week-long convocation was ending on that day.

Pastor Lester Parkinson, from Trinidad and Tobago, had preached all week, making reference to the crisis of leadership that is facing several countries around the world. The visiting pastor gave a special mention of Maraga who, as Chief Justice, had onerous responsibilities to the Kenyan public.

On the last day of the convocation, Maraga asked for a special prayer, something that members of the church can do from time to time, in the light of the special responsibilities that lay ahead of him, of having to preside over a court that would be hearing the presidential election petition.

COURAGE

The prayer session was highly emotional and some members of the congregation even shed tears. In the week that has now passed, Maraga has presided over the most important decision in Kenyan judiciary history. It is impossible to over-estimate the amount of courage that would have been required to reach the decision.

In 2013, when the Supreme Court arrived at just this kind of moment with Mutunga as the Chief Justice, it made a different decision, choosing to uphold the results of a manifestly dubious election, and justifying its decision in a most implausible manner. Overturning the results of a presidential election is the kind of fateful decision that judges would rather not take unless they can shelter under a clear leader. Such a leader lacked in 2013.

RELIGION

Other than Philomena Mwilu, now the Deputy Chief Justice, and Isaac Lenaola, who has since joined the court, the rest of the bench was the same as 2013. The key difference is the leadership that Maraga has now provided, and which Mutunga failed to provide in 2013.

In a country where religion has been used to justify oppression, Maraga has used it to find the inner courage to make a historic decision that the country will never forget. This simple but honest man has provided a lesson that the many political preachers that surround the royal courts would need to emulate.

Compared to the suave Mutunga, Maraga may have seemed rather unfashionable. However, it is now clear that Maraga might be the stone that the builders rejected.

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This article was first published in the Sunday Nation on 3 September 2017 to which credit is given.

Last modified on Tuesday, 31 October 2017 01:27
George Kegoro

The Executive Director of the Kenya Human Rights Commission

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