By Tioko Ekiru Emmanuel
In February 1901, Oliver Wendell Holmes was asked to make some remarks on “John Marshall Day,” the 100th anniversary of the day on which Marshall took his seat as chief justice of the United States. Sixty-five years after his death, Marshall, had become a legend, and the legal journals and reports were filled with lush praise of his accomplishments. Holmes’ comment was more reserved. At one point he said, “I should feel… a doubt whether, after Hamilton and the constitution itself, Marshall’s work proved more than a strong intellect, a good style, personal ascendancy in his court, courage, justice, and the convictions of his part.”
Then, perhaps with Marshall’s in mind, he continued, “My keenest interest is excited, not by what are called great questions and great cases, but by little decisions which the common run of selectors would pass by because they did not deal with the constitution or a telephone company, yet which have in them the germ of some wider theory, and therefore of some profound interstitial change in the very tissue of law. The men whom I should be tempted to commemorate would be originators of transforming thought. They often are half obscure, because what the world pays for is judgment, not the original mind.”
Put differently, Kenyan Chief justice David Maraga and his other three colleagues (Philomena Mwilu, DCJ, Smokin Wanjala and Isaac Lenaola) will be remembered for a long time to come in Kenya’s history and even in the global community as the “giants of the constitution”. In a historic judgment, and a first on the African continent, Kenya’s Supreme Court asserted the place of the constitution supremacy as decreed by the Article1 of Kenya 2010 constitution, on September 1, 2017. The Maraga – bench delivered one of the world shocking judgments. The Court, in their landmark ruling, did what other courts have never done before since independence, by nullifying the election of a sitting president. In the Court’s majority ruling, the electoral commission had committed irregularities and failed to conduct the election in accordance with constitutional dictates and other relevant electoral laws.
That ruling was celebrated by a section of Kenyans, who saw it as a devastating blow to long-lasting authoritarian electoral systems in the country. The judgment had rays of great significance. First, it restored confidence and the belief in the rule of law. In similar vein, it reaffirmed the supremacy of the Constitution. Consequently, it endorsed the position that Kenya as country deserves credible, free and fair election. The ruling also will serve as a compass pointer of African renaissance and reawakening to right path of constitutional democracy. Lastly the ruling provided opportune moment of a golden chapter in the life of a nation.
For the purpose of this article, Justice David Maraga was born on January 12, 1951 in Nyamira County. He holds a Masters in Law from the University of Nairobi, specializing in Governance and Democracy; and a Bachelor’s degree in Law from the same university. He is the former chairman of the Judiciary Committee on Elections (JCE), and also chaired the tribunal appointed by President Uhuru Kenyatta to investigate the conduct of a Justice Joseph Mutava of the High court of Kenya over corruption allegations. He prides himself with successfully completing the hearing and determination of the 2013 election petitions and appeals within time.
During the judges and magistrates vetting process, it is reported that, he, accused of corruption, surprised the panel when, instead of labouring to defend himself, chose to swear on the Bible that he had never taken a bribe in his life, and never would. This is a total sum of his life so far.
Judging in the constitutional era
Judges globally are required to be impartial and independent, to judge without fear, favour or prejudice. Though there’s a belief that no human being can ever be absolutely objective, it is equally true that judging is not a mechanical process and in most cases, judgments are about human beings. The impact of a judgment affects human beings directly or indirectly, and this has an effect on the one who makes the call. As Cardozo J said, “There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives a coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives , forces which they do not recognise and cannot name, have been tugging at them-inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs…in this mental background every problem finds its setting. We may try to see things as objectively as we please. None the less, we can never see them with any eye except our own.”
While judging in a constitutional democracy, judges are required to be defenders of the constitution and democracy itself. If democracy does not be protected, it can be perverted and destroyed, and in return, it will not protect us.
Aharon Barak, a scholar of the law, noted: “The struggle for the law is unceasing. The need to watch over the rule of law exists at all times. Trees that we have nurtured for many years may be uprooted with one stroke of the axe. We must never relax the protection of the rule of law. All of us – all branches of government, all parties and factions, all institutions – must protect democracy. This protective role is conferred upon on the judiciary as a whole and on the Supreme Court in particular. Once again we, the judges of this generation, are charged with watching over our basic values and protecting them against those who challenge them.”
Protecting democracy is the pinnacle calling of every judge, particularly those of Supreme Court .They must educate the public about the law and role of judiciary. It is equally the role of every State actor or organ to ensure there is full stewardship to the constitution and democracy.
Despite sharp attacks on the Judiciary by political class, Chief Justice David Maraga has elected to stand on the right path of the law and his “fear of the Lord” as his key guiding tenets on justice delivery. As Martin Jr once said, the arch of history is just but it bends towards justice. Maraga’s boldness and brave stand is nothing less than justice and strict adherence to the law. This can be attested to by his remarks when he declared the re-election of Uhuru Kenyatta, during 2017 presidential election null and void, thus: “The greatness of a nation lies in its fidelity to its constitution and strict adherence to the rule of law and above all the fear of God.”
Justice Maraga’s fidelity to the law justifies what South African legal scholar Etienne Mureinik called a shift from “a deep culture of authority to a culture of justification” – a culture in which every exercise of power is expected to be justified, in which the leadership given by the government rests on the cogency of the case offered in defence of its decisions, and not the fear inspired by the force of its command. Etienne emphasized the new order must be a community built on persuasion, not coercion. Mauricio Garcia-Villegas in “Law as Hope: constitutions, courts and social change in Latin America” argues, “…the new culture must be brought about through the elaboration of a new legal doctrine, particularly a judicial legal doctrine that favours social change”.
The new Kenyan jurisprudence represents a powerful departure from the horrible dark days of the Nyayo era; it’s a movement to a new egalitarian world. Implementing the ideals of the new order requires men and women who are ready to be the divine priests at the constitutional altar. Maraga’s court has proven to be one!
In the case of Joho v. Nyange & Another (2008) eKLR (EP) 500, Maraga stated, “The law is therefore clear as to when an election can be nullified if it is not conducted substantially in accordance with the law as to elections. It will also be nullified, even though it is conducted substantially in accordance with the law as to elections, if there are errors or mistakes in conducting it which, however trivial, are found to have affected the result of the election.”
It is worth noting that Kenya’s apex court has ushered in the new dawn rebirth of our judiciary. It has proved to the world that Kenyan Supreme Court stands tall among as the strongest citadels of justice across the length and breadth of the globe.
Just like CB Madan, perhaps the most outstanding chief justice the country has ever had until now – because result of his transformative jurisprudence, oratory skills, approach to judging, fidelity to the constitution and commitment to judicial independence and accountability – CJ Maraga deserves all the accolades for being a defender of our robust transformative project from the “unprogressive forces”. This man is going to dominate the national scene memory of our nation, not because of the glory or the fame he brought to the court but for being one in a generation of legal giants.
For ages, and for good reason, the Judiciary in Kenya has been viewed as corrupt, slow in adjudicating disputes, and therefore a puppet of the State. For instance, in the 1974 election petition of Raphael SK Mbondo v. LD Galgalo & Paul Joseph Ngei, popularly known as the Ngei Case, the election court found Ngei guilty of an election offence and was barred from contesting for the parliamentary seat for a period of five years. However, President Jomo Kenyatta ordered a constitutional amendment of his Power of Mercy to allow him pardon election offenders. Such acts exemplify a Judiciary that was loyal to the Executive.
In another case, Kenneth Matiba v. Daniel arap Moi, the court of Appeal dismissed the election petition filed by the petitioner contesting the 1992 presidential election on grounds that the petition was signed by his wife and that it had not been served on the respondent, who was the president. Clearly, there were intended efforts to frustrate Matiba’s presidential bid. Consequently, the Judiciary became one of the most criticized arms of government by the public in general. In its report, “The peoples’ choice” the Constitution of Kenya Review Commission, 2002, noted, “The judiciary rivals politicians and the police for the most criticized sector of Kenyan public society today. For ordinary lawyers, there is concern about competence and lack of independence”.
The promulgation of the Constitution in 2010 was a pathway to unlock all institutional failures in the State. The Judiciary was one of the critical organs targeted for radical surgery reforms. The Constitution, by dint of Article 160(1), guarantees the independence of the Judiciary, stating that in exercising their judicial authority, judges are ONLY subject to the constitution and the law, and shall not be subject to the control or direction of any person or authority. To buttress of this provision, judges are so far appointed through a transparent, competitive and public process. Both the CJ and his Deputy were appointed by the President with recommendation of the Judicial Service Commission, and approved by the National Assembly.
The removal of judges is governed by Article 168, which lays the procedure to be followed in removing a judge from in office. The tribunal is formed to enquire into the matter expeditiously and reports the finding before making recommendation to the President as to whether a removal is warranted.
Judges, in an era in which the Constitution ought to be supreme, have important mandates of ensuring disputes between government bodies and citizens are resolved amicably, within the demands and the dictates of the law. Judges must be true guardians of the constitution.
The Constitution: Normative in design, Transformative in character
One aspect of our constitution that is yet to be appreciated by academicians, legal scholars and laypersons is its character and design. Like the post-Nazi Germany Basic Law and South Africa’s 1996 post-apartheid document, the post-authoritarian 2010 constitution of Kenya represents a total rupture with our authoritarian past; it can be said to embody an objective, normative value system. In his well-known journal article, “Transformative constitutionalism and the common
and customary law”, Karl Klare coined the phrase ‘transformative constitutionalism’ with respect to the 1996 constitution of South Africa. In respect to Klare, the constitution of Kenya, 2010 is different – it is transformative. The constitution is a document committed to social transformation. It has the aspiration and intention to realise in Kenya a democratic, egalitarian society committed to social justice and self-realizing opportunities for all. In support of post-liberal reading, one would opine that the Kenyan constitution, in sharp contrast to classical liberal documents, is social, redistributive, caring, positive, horizontal, participatory, multicultural, and self-conscious about its historical setting and transformative role and mission.
It is to be understood that the post-2010 authoritarian order in Kenya tends to navigate state reconstruction. The legal order is anti-formalistic but it goes beyond to invite legal practitioners to be engineers of developing and crafting law. Courts are enjoined to depart from 19th century formal reasoning and to embark on value-based reasoning, which recognizes judicial reasoning. Kenya, the state, is founded on social- normative settings.
Justice J.B Ojwang’, an academic scholar, is said to be first interlocutor to correctly capture the unique aspect of the 2010 constitution of Kenya in Joseph Kimani Gathungu v. Attorney General & 5 others where asserted, “A scrutiny of the several constitutions Kenya has had since independence shows that, whereas the earlier ones were designed as little more than a regulatory formula for state affairs, the Constitution, 2010, is dominated by a ‘social orientation’ and as its main theme, ‘rights, welfare, empowerment’… the constitution offers these values as a reference point in governance functions.’
In Similar vein, the Supreme Court in Communications Commission of Kenya & others v. Royal Media Services and others, observed thus:
“The Constitution itself has reconstituted or reconfigured the Kenyan state from its former vertical, imperial, authoritative, non-accountable content under the former constitution to a state that is accountable, horizontal, decentralized, democratized, and responsive to the principles and values enshrined in Article 10 and transformative vision of the constitution. The new Kenya state is commanded by the constitution to promote and protect values and principles under Article 10”.
To appreciate the nature of our transformative constitution, we need to look back to the concerns that animated the quest for constitutional reforms in Kenya. The struggle for constitutional reform was underpinned by two main objectives: First, they were intended to transform the political governance structures from authoritarianism (what the late historian Elisha Atieno-Odhiambo called the “ideology of order”), to a culture of democratic decision-making where all exercises of public power were justifiable. Secondly, reforms were aimed at the transformation of the economic and social structures that entrenched endemic poverty and pervasive inequality, into an egalitarian and caring society.
The quest for this reform culminated in the rejection of the prevailing status quo in 2010. The new constitution, as a result of its transformative nature, holds the promise of a new beginning for our nation and represents our collective quest for rejection of authoritarian past.
Supreme Court as chief guardian of the Constitution
The Supreme Court is Kenya’s court of last resort. It is the chief and final custodian of the Constitution of Kenya. However, the Court does not have a plenary, last resort jurisdiction in all matters. Rather it has special mandates vested on it by the constitution. The Constitution, in Art.163(3), underscores the fact that the Supreme Court shall have exclusive original jurisdiction to disputes in relation to the office of the president arising under Article 140 and, subject to Clauses ( 4) and ( 5), appellate jurisdiction to hear and determine appeals in matters that involve the interpretation and application of the constitution. The court also may give advisory opinion at the request of the national government, any state organ, or any county government with respect to any matter concerning county government. Similarly, the court is bound by its own decisions.
Further to its role, the Court, being the highest temple of justice, must be ready to safeguard the state design through constitutional interpretation and application as provided in Article 163(4). The Court must be ultimate judge of what is right or wrong in any matter that raises conflicts touching the integrity of the constitution. Ojwang, remarkably, put it that “the constitution cannot propel itself”, and as, such the judiciary is assigned a central and special role as the primary and ultimate arbiter, when the operation of the several public bodies runs into conflict.
In the Speaker of Senate Case, Rawal DCJ (as she was then) adopted the view of the South African constitutional court in Doctor for Life, where it was asserted that the court bears the responsibility of being the ultimate guardian of the constitution and its values, has jurisdiction in crucial political areas “and bears the duty” to adjudicate finally in respect of issues which would inevitable have consequences.
The constitution of Kenya is anti-formalistic in nature. It calls for a re-evaluation of old legal culture which previously treated the constitution like an ordinary statute. The Supreme Court of Kenya in, the “Matter of the Interim Independent Electoral Commission recognised that the Constitution demands fundamental changes in Kenya’s legal culture, stating:
“(86) In common with other final courts in the common wealth, Kenya’s Supreme Court is not bound by its decisions, even though we must remain alive to the need of certainty in the law. The rules of constitutional interpretation do not favour formalistic or positivistic approaches [Articles20 (4) and 259]. The Constitution has incorporated non-legal considerations which we must take into account, in exercising our jurisdiction. The Constitution has the most modern Bill of Rights, which envisions a human rights-based, and social justice oriented state and society. The values and principles articulated in the preamble, in Article 10, in Chapter 6, and in various other provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. Article 159 (1) states that judicial authority is derived from the people of Kenya, and that authority must be reflected in decisions made by courts.
(87) In Article 259 (1), the Constitution lays down the rule of interpretation as follows: This Constitution shall be interpreted in a manner that(a)promotes its purposes, values and principles; (b) advances the rule of law, and human rights and fundamental freedom in the bill of Rights; (c)permits the development of the law; (d)contributes to good governance. Article 20 requires the courts, in interpreting the Bill of Rights, to promote (a) the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and (b) the spirit, purport and objects of the Bill of Rights.
 These constitutional imperatives must be implemented in interpreting the provisions of Article 163(6) (7), on Advisory opinions. Article 10 states clearly the values and principles of Constitution, and these include: patriotism, national unity, sharing and devolution of powers, the rule of law, democracy, participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised ,good governance, integrity, transparency and accountability and sustainable development.
 It is for these reasons that the Supreme Court, while observing the importance of certainty of the law, has to nurture the development of the law in a manner that eschews formalism, in favour of purposive approach. Interpreting the constitution is a task distinct from interpreting ordinary. The very style of the constitution compels a broad and flexible approach to interpretation.”
Our Supreme Court, in the short lifespan of seven years since the promulgation of constitution, has made progressive steps in making sound decisions. It is the only court that has responds to needs and interests of Kenyan’s people as demanded by Section 3 of Supreme Court Rules. The elements of robust (rich), indigenous, patriotic, and progressive jurisprudence are the court guiding light to navigate the future.
The year 1882 saw the emergence, at the age of 32, one of greatest judges produced by Indian court in its entire history – Justice Syed Mahmood. Chief justice Hindayatullah, commenting on Justice Mahmood, says,
“Anyone who wishes to name six greatest Indian judges of all time must find it difficult to omit the name of Syed Mahmood from his list. It is indeed a moot question how far he will go in his list before he must name him. His career as a permanent judge of this court started at the age of 36 and ended at the age of 44, and within the short span of eight years, he enriched legal thought by his classic judgments sufficient to confer immortality upon any judge anywhere in the world. Indeed, he was far ahead of his time and a genius par excellence. He acquired such lasting fame during his stint on the Bench, and his judgments continue to illuminate legal thought with the same brightness with which it dazzled in the last quarter of nineteenth century. He has perhaps given to our court more than any other judge throughout its history of 125 years.”
Chief Justice Koka Subba Rao, too paying tribute to Mahmood said, “His judgments are mastery exposition on the different subjects dealt with by him. They reflect research, scholarship, hard work and thoroughness in detail. Some of his judgments hold the field even now though a century has passed since they were delivered.”
Both Justice Mahmood of and Justice Muthuswamy Ayyar of the Madras High Court were contemporaries and were unanimously rated as the greatest judges of the day.
It is remarkable to note that, when the history of Kenyan’s Supreme Court will be written, the names of the Maraga Bench shall be inscribed in letters of gold. The Court, within a short period of time, has ushered in our “golden age”. It has emerged as the institutional voice to defend to and identify the place of constitution under hierarchy of norms. We live in a Mahmood-like formative regime under stewardship of CJ David Maraga.^