Finally, a Substantive Chief Justice

As with every action there is corresponding reaction, there is both excitement and reservation that Kenya’s Judicial Service Commission, has, from the many contenders, chosen a nominee for the office of Chief Justice that they believe will be a worthy replacement of the former, Willy Mutunga.

After the stringent, but, thankfully competitive, transparent, and successful process of applications and interviews (save for a few, negligent controversial comments from a few candidates) the Judicial Service Commission has met its first function, under Article 172 (1) (a) of the Constitution of the Republic of Kenya, which is to recommend to the President persons for appointment as judges – in the instant case, the Chief of them all.

The nominee, Hon. Mr. David Kenani Maraga, who, most recently, has been leading the appellate court in Kisumu, was among the eleven judges shortlisted during the interview process. He is an intriguing fellow, who, after he had been accused of having taken a bribe to influence a Court decision, stunned many after he stood before cameras and swore by the Bible declaring that he had never taken a bribe in his life. His impression is, briefly, admirable and is with a presumably untainted record.

Expectedly, the human in some of us have been quick with our reactions. The unwarranted, crafted conversations have concentrated on Maraga, J’s origins, in Kisii, as bait, by the current Jubilee government, to interest the Kisii community in thanking the current government for the gift of choosing one of theirs as the incoming Chief Justice, and thus purring the unnecessary, ever lingering topic of tribalism at the centre of the conversation.

Also, there have been comments on his religious affiliations –to the Seventh Day Adventist church and his personal reservations about presiding over matters which, by any chance, fall on Saturdays – his faith’s Sabbath. That, certainly, has no significant influence on his decisions and the functions of his office.

The most intriguing has, as a matter of course, pertained to politics. He has been painted, by some, as a confidant of the current President, H.E Uhuru Kenyatta. Well, every man is entitled to friends. As if that is not enough to ponder about, to it has been coupled the looming fear that he is not known to be a progressive constitutional judge, or what is commonly known as a judicial activist.

The only fear in or of it being that he might be, or rather will be, influential in preserving the President’s re-election when 2017 arrives. One of the constitutional functions of the Chief Justice’s office is to entertain petitions arising from elections, particularly presidential election petitions.

Importantly, we are nearing the end of the process of appointment of a Chief Justice, as detailed in Article 166 (1) of the Constitution of Kenya, 2010, which is that the President shall appoint the Chief Justice and Deputy Chief Justice in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly.

More importantly, Kenya will soon have a substantive Chief Justice to take up the station recently vacated by the Hon. Willy Mutunga. The significance being that one of the three and quite important arms of government, the judiciary, will not be found wanting or poorly constituted and not available to check and balance the Legislature and Executive – the other two – when need arises.


This article appears in our newsletter, The Deuteronomy Vol 6, Issue 4 of September 23rd 2016

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