CJ Maraga: as profound as he was polarizing

By Austin Ekea

David Kenani Maraga, post-independent Kenya’s 14th Chief Justice will, in all probability, go down as the most controversial CJ Kenya has had. His judgments on serious constitutional matters have been as polarizing as they have been groundbreaking, with serious political ramifications. In perhaps his most famous judgment, Maraga’s Court made history in Kenya and Africa as the first to nullify a Presidential election when it set aside President Uhuru Kenyatta’s win in 2017.

In declaring the president invalidly elected, Maraga made the now-famous declaration, “The greatness of a nation relies on its fidelity to the constitution and adherence to the rule of law”, and, with those words, made known his philosophical leaning – as a textualist. Senior Counsel Ahmednasir Abdullahi, representing President Kenyatta, dismissed the judgment as “Wrong… It is getting first year law or 101 law wrong, distorting evidence that we presented… Pedestrian, too simplistic and shocking.”

In an advisory in September 2020, CJ Maraga was back with another bombshell. Carrying himself with his characteristic, deceptive calm, he shocked the whole country with a ten-pager that advised the President to dissolve Parliament for failing to realize the gender principle of the Constitution. The CJ explained to the President Kenya’s journey in the quest to realize gender equity as espoused under Article 261(7), our hits and misses along the way, and what our failure to actualize the gender the gender principle in our political processes portended.

As a result of his sometimes “unpopular” judgements, Maraga has continued to receive praise and resentment in equal measure. His critics posit that he was unprepared for the jurisprudential rigour expected of An Apex Court Justice. They add that he has done little to develop the law, and that he is a man who does not “care” about the oncoming ramifications of his judicial pronouncements on the country thus labeling him “weak”.

But an objective analysis of CJ Maraga’s judgments paint the picture of a jurist driven by a deep belief in his chosen legal philosophy.

We ought to have anticipated

Analyzing Maraga’s ruling in ‘AG V Mohammed Hashi and Others’ while he was at the Court of Appeal, the first Presidential election petition in 2017 and the Gender Advisory portray profound textualist; perhaps, if we had elected to accept his philosophical background, we might have anticipated his strict and narrow interpretation of the law.

Textualism as means of constitutional interpretation denotes a mode of interpretation “that focuses on the plain meaning of the text of a legal document.” Textualism usually emphasizes how the terms in the Constitution would be understood by people at the time they were ratified, as well as the context in which those terms appear.

Textualists usually believe there is an objective meaning of the text, and do not typically inquire into questions regarding the intent of the drafters, adopters, or ratifiers of the Constitution and its amendments when deriving meaning from the text. There exists a close relationship between textualism and originalism – with the latter referring to interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding “at the time it was adopted.”

In the case of ‘AG v Mohammed Hashi and Others’, Maraga, drawing from his textual background, rigidly interpreted the reading of Sections 369 and 371 thus making it clear that the Merchant Shipping Act of 2009 retains the offence of piracy jure gentium in Kenya as the offence is basically the same as the one that was in the repealed Section 69 of the Penal Code. This was also the case in election petition 1 of 2017 where the CJ held that the IEBC “failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the constitution” – with critics arguing that the error was too insignificant to alter the final outcome.

Old fashioned

Defenders of Maraga argue that textualism, owing to its simple and transparent approach, focuses solely on the objectively understood meaning of language of the text independent of ideology and politics. They further argue that textualism prevents judges from deciding cases in accordance with their personal policy views thus leading to more predictability in judgments. This can best be seen on how the CJ approached matters requiring judicial interpretation.

Proponents of originalism also argue that textualism promotes democratic values because it adheres to the words of the Constitution adopted by the “people” as opposed to what individual justices think or believe. Opponents, on the other hand, suggest that, depending on their background, judges and other interpreters can assign different meanings to the text of the Constitution, a problem compounded by textual provisions that are broadly worded or fail to answer basic constitutional questions. Additionally, they contend that judges should consider principles not clearly set out in the text, such as those based on moral reasoning, practical implications, structural relationships or other factors.

Conclusion

Maraga’s seemingly lackluster pronouncements may appear as though they are not premised on any jurisprudential school of thought but nothing could be further from the truth. Whereas his decisions may be lambasted for lacking in constitutional razzmatazz, such criticisms are but lacking in honesty.

Maraga has faithfully adhered to the letter of the law.

extualism/originalism is far better than a complete lack of subscription to any school of thought. He was hired to be faithful to the constitution [as rendered], to uphold and champion the rule of law, and that is what he did – diligently and faithfully.

Maraga is a stickler to the black and white letter of the law, which he upheld in a bid to give life to its spirit. That said, the ramifications of his rigid interpretation of the law portend far-reaching consequences to the politico-legal landscape of the country. It wouldn’t have hurt Maraga to exercise some flexibility, for that is what the position requires of its holder from time to time – to be unencumbered by the inflexible rules of interpretation such as textualism calls for. (