Justice over politics: why David Maraga held a consequential term as chief justice

Justice over politics: why David Maraga held a consequential term as chief justice

By Kibe Mungai

When judges are not free, no man can be said to have rights, for the form of justice can be twisted to serve the tyranny of the numerous, the wealthy, or the powerful. One cannot be sure of always running with the pack; he may find himself the pursued rabbit. A man cannot tell when in a civil or criminal case he may be unjustly accused, the object of widespread calumny and popular hatred, with the result that his property, his liberty or even his life, is in danger. In that day his only refuge is a firm and independent judiciary, governed by conscience and not by clamor, and free to do justice even to a hated individual in the face of an angry crowd” Justice Henry T. Lummus

Chief Justice David Maraga – Kenya’s second Chief Justice under the 2010 Constitution – retired on 12th January, 2020 because the Constitution provides that the retirement age of judges is 70 years. As chief justice, Maraga headed one arm of government; the heads of the other arms of government, namely the President and speakers of Parliament, can serve in such positions at any age. Therefore watching CJ Maraga remove and hand over his robes on the steps of his Chambers, I could not help but note the irony of a reasonably fit, healthy and sober public servant vacating a ‘lesser’ office yet in two years’ time (in 2022), Kenyans might elect a 76-year-old, weak-looking octogenarian as their fifth president.

Coupled with the naked, even brazen, hostility of the Executive and Parliament towards him, Maraga’s retirement after only four years on the helm, underscores the tensions and imbalances that have plagued the operations of the judiciary since 2010 and defined its relationship with the other arms of government. Of greater immediacy, these tensions and imbalances underline the legacy of the Chief Justice in his four-pronged job as chief judge, president of the Supreme Court, chair of the Judicial Service Commission and the administrative head of the Judiciary. To be sure, it is in these four functions that the legacy of Chief Justice Maraga ought to be assessed. On my part, however, I will be content with the Chief Justice’s functions as President of the Supreme Court as chairman of the JSC and the Chief Judge in analyzing Maraga’s legacy.

It is easy to make sweeping statements that Maraga was a great Chief Justice and champion for the rule of law, or a self-centred political novice and poor leader who picked up unnecessary fights that at his retirement have left the judiciary worse-off and imperiled our democracy. Depending on context and circumstances, there could be some grains of truth in all these views but in the end it may not really matter one way or the other.

In stating this, I bear in mind the fact that at the end of the day what matters most in life is the impact of our decisions, actions and omissions on society and the country. In other words, the question to ask is whether or not Maraga’s four years as chief justice was consequential and in which way — that is transient or permanent. To put the subject in proper perspective some political background and historical realities are necessary.

Since Kenya became independent in 1963, the government has been organized around the Montesquiean principle of three separate but co-equal arms of government. In reality, however, the executive has been the predominant, even omnipotent, arm of government used to getting its way in Parliament and in the courts whenever necessary.  In fact, until the current constitution was promulgated in 2010, the Judiciary was nothing more than an autonomous department of the State Law Office, and the constitutional declaration of independence was more of hyperbole than reality. It’s no wonder that in the wake of the Aaron Ringera-led purge of the judiciary in 2003 – 2004, a member of the judiciary lamented its subservience to the executive as follows:

The Judiciary in Kenya is at a crossroads. Its authority has been denuded over the years that to the majority of Kenyans, it is no longer seen as a lion on the throne, but just a mouse squeaking under the chair of the Executive. As judges, we violently resent this label but deep down some of us know that it is true. When faced with claims against the government, we sometimes behave like a river by taking the course of least resistance.

Fast forward to 2010. As the preamble states, the promulgation of the 2010 Constitution sought to achieve the “aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law”. Chapter One of the Constitution declares the sovereignty of the people, supremacy of the Constitution and makes it an obligation of every person to respect, uphold and defend the Constitution. Thus, in one fell swoop, Amos Wako’s axiom and configuration of “everyone is under the law save the President” came to a crushing end. 

At least in principle.

Besides the principle in Article 2 binding all persons and all State organs to the majesty of the Constitution, Article 10 enjoins all State organs, State officers, public officers and all persons to observe and respect enumerated national values and principles of governance in discharging their duties and performing their functions. The national values and principles of governance include rule of law, democracy, human dignity, human rights, good governance, integrity, transparency and accountability. Moreover, the rights and fundamental freedoms set out in Chapter Four of the Bill of Rights apply to all laws and bind all state organs and all persons. Put differently, the new Constitution sought to establish in Kenya what Kiraitu Murungi – the current Meru Governor – used to call the human rights state.

In order to insure Kenya from the plague of tyranny, the 2010 Constitution set out to subject the President to the law and to enhance the power and prestige of Parliament and the Judiciary in the structure and operations of government in three respects. In the first place, Article 131(2) requires the President, inter-alia, to uphold and safeguard the Constitution and ensure the protection of human rights and fundamental freedoms and the rule of law. Under Article 135, decisions of the President in the performance of his constitutional functions must be in writing.

In the second respect, Article 94, inter-alia, vests Parliament with supreme law-making power and enjoins it to protect the Constitution and promote the democratic governance of the Republic. Further, the National Assembly approves appointment of specified state officers, determines the allocation of national revenue between the levels of government, reviews the conduct in office of the President and exercises oversight of State organs. On the other hand, the Senate represents the counties, and serves to protect the interests of the counties and their governments.

The third respect concerns the Judiciary. In my book, the most important thing is the power of the High Court under Article 165(3) — inter-alia, to protect the Bill of Rights determine constitutionality of all laws and regulations and to determine whether anything said to be done under the authority of the Constitution or if any law is inconsistent with, or in contravention of the Constitution. 

Equally notable, Article 163 establishes the Supreme Court as the apex court, and vests it, inter-alia, with exclusive jurisdiction to hear and determine presidential election disputes and to determine appeals from the Court of Appeal in any case involving the interpretation or application of the Constitution. Further the Constitution establishes the Judicial Service Commission (JSC) and enjoins it to promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice. Moreover, the Judicial Service Commission shall recommend to the President persons for appointment as judges and to advise the national government on improving the efficiency of the administration of justice.

Hence the 2010 Constitution seeks to establish a democratic government with three arms that of necessity must discharge their respective duties efficiently and harmoniously for the ultimate benefit of the Kenyan people. This is all very well on paper but the reality since 2013 when the entire Constitution came into force is far from rosy. I can hazard at least three major reasons why this is the case.

First, the 2013 General Election brought into power an administration whose potentates were socialized with the tyrannical and arbitrary conceptualization of power under President Daniel arap Moi. With the benefit of hindsight, Uhuru Kenyatta and William Ruto should have been expected to begrudge a constitution that did not empower them to do the things they saw Moi and Jomo Kenyatta before him doing, and which attracted them to seek the presidency in the first place.

Secondly, in both 2013 and 2017 the governing party was elected with too many hustlers, borderline professionals, plebeian traders and dozens of free felons. There is no evidence to show that the leadership of Parliament has managed to inspire or educate these MPs to understand the magnitude of the obligation entrusted upon them by the Constitution, let alone to discharge it. Consequently, there is no qualitative difference between the post-2010 parliaments and its predecessors. In fact, in many ways, after the 2013 general election Parliament has been more beholden and subservient to the Executive then any other multi-party Parliament.

Thirdly, the post-2010 Judiciary witnessed the appointment of a new generation of judges conscious of the enhanced powers, place and prestige of the courts in the new constitutional order. Above all, Chief Justice Willy Mutunga assumed office with solid credentials and he enabled a smooth transition from the old to the new judicial order with notable credit. Thus the picture that emerges is one of a government whose political arms are modeled on and inspired by the old order of single party dictatorship and a non-political arm consumed by idealism of a liberal constitution and determined to assert their pride of place. This kind of constitutional climate was bound to foment trouble in paradise sooner than later. As Alexander Hamilton said in the North Carolina Convention:

The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse, no direction either of the strength or the wealth of society, and can take no active resolution whatsoever. It may truly be said to have neither force nor will but merely judgement, and must ultimately depend upon the aid of the Executive for the efficacious exercise even of its faculty. This simple view of the matter suggests several important consequences. It provides, incontestably, that the judiciary is beyond comparison the weakest of the three departments of power, that it can never attack with success either of the other two, and that all possible care is requisite to enable it to defend itself against their attacks.

If Alexander Hamilton were to resurrect, he would be amazed at the spectacular way in which his observation has played out in Kenya. During the tenure of CJ Maraga, Kenya’s National Assembly has gone out of its way to starve the Judiciary of operational funds and gone ahead to slash all its development funds. On its part, the Executive has turned the constitutional obligation to obey court orders into a privilege whenever the courts issue orders that it considers illegitimate. Moreover, rarely have the Executive and Parliament missed any opportunity to belittle judicial officers and project the judiciary as out of touch with the aspirations of the people.

The way I see it, since 2013, the new constitutional order has struggled to establish itself in terms of political legitimacy. Arguably the most obvious manifestation of this struggle is the apparent unwillingness or reluctance of the Uhuruto presidency to accept the legitimacy of the limits on Executive power engendered and demanded by the 2010 Constitution.  Even Parliament and its members and officials have struggled to come to terms with the higher bar the Constitution demands of them as attested by the fact that Parliament and the Parliamentary Service Commission have become omnipresent litigants before the various superior courts. In many ways, the political arms of government view the Constitution with a mixture of jaundice, skepticism and suspicion and the courts are seen as the arrow-heads of their “constitutional persecution.”

A personnel problem

There is also a problem of personnel in the three arms of government. If the fifth president of Kenya will be elected from the former ODM Pentagon of Raila Odinga, William Ruto, Musalia Mudavadi and Kalonzo Musyoka, it will mean that Baba Moi’s prediction that KANU will rule Kenya for 100 years was not sheer fantasy and chest thumping after all. From an ethical standpoint and performance capacity, the eleventh and twelfth parliaments are worse than all their multiparty predecessors. Despite the fact that the 2010 Constitution gives Parliament more powers than the former constitution to review and oversight presidential conduct and exercise of Executive power, the Jubilee administration has practically governed as it wished whether the matter is superficial vetting of state officers or procurement of expensive, low value sovereign debts.

Courtesy of the 2003 Ringera-led judiciary purge and the removal of judges through vetting of judges and magistrates in 2016, the current majority of judicial personnel belong in the new Constitutional order. Invariably, the ideological persuasions of the personnel running the three arms of government were bound to generate tensions and toxic relationships. As adverted to above, the personnel in the Executive and Parliament could easily find common ground and form power alliances against what they consider as unwarranted encroachment by the courts on their spheres. It is, therefore, against this perspective that the triple legacy of Chief justice Maraga as President of the Supreme Court, the Chief Judge and head of the Judiciary should be analysed.

Maraga as President of the Supreme Court

Without a doubt, the 2017 majority decision of the Supreme Court to quash the 2017 presidential election results will remain the most famous or infamous decision of Maraga as president of the Supreme Court. In nullifying President Uhuru’s re-election results, the CJ stated that “the greatness of any nation lies in its fidelity to the Constitution and adherence to the rule of law and above all respect to God”.  At paragraphs 398 to 400 of the Judgement, the majority expressed themselves as follows:

[398] In the circumstances, and in answer to the respondents’ harp on numbers, we can do no better than quote the words of Justice Thakar of the Indian Court of Appeal in the case of Ponnala Lakshmaiah v. Kommuri Pratap Reddy & Others,[129] in which he observed:

“There is no denying the fact that the election of a successful candidate is not lightly to be interfered with by the Courts. The Courts generally lean in favour of the returned candidates and place the onus of proof on the person challenging the end result of an electoral contest. That approach is more in the nature of a rule of practice than a rule of law and should not be unduly stretched beyond a limit. We say so because while it is important to respect a popular verdict and the courts ought to be slow in upsetting the same, it is equally important to maintain the purity of the election process. 

An election which is vitiated by reason of corrupt practices, illegalities and irregularities……cannot obviously be recognized and respected as the decision of the majority of the electorate. The Courts are, therefore, duty bound to examine the allegations whenever the same are raised within the framework of the statute without being unduly hyper-technical in its approach & without being oblivious of the ground realities. Experience has shown that the electoral process is, despite several safeguards taken by the Statutory Authorities concerned, often vitiated by use of means, factors and considerations that are specifically forbidden by the statute.”

[399] What of the argument that this Court should not subvert the will of the people? This Court is one of those to whom that sovereign power has been delegated under Article 1(3)(c) of the same Constitution. All its powers including that of invalidating a presidential election is not, self-given nor forcefully taken, but is donated by the people of Kenya. To dishonestly exercise that delegated power and to close our eyes to constitutional violations would be a dereliction of duty and we refuse to accept the invitation to do so however popular the invitation may seem. Therefore, however burdensome, let the majesty of the Constitution reverberate across the lengths and breadths of our motherland; let it bubble from our rivers and oceans; let it boomerang from our hills and mountains; let it serenade our households from the trees; let it sprout from our institutions of learning; let it toll from our sanctums of prayer; and to those, who bear the responsibility of leadership, let it be a constant irritant.

[400] Have we in executing our mandate lowered the threshold for proof in presidential elections? Have we made it easy to overturn the popular will of the people? We do not think so. No election is perfect and technology is not perfect either. However, where there is a context in which the two Houses of Parliament jointly prepare a technological roadmap for conduct of elections and insert a clear and simple technological process in Section 39(1C) of the Elections Act, with the sole aim of ensuring a verifiable transmission and declaration of results system, how can this Court close its eyes to an obvious near total negation of that transparent system?

More than three years later, educated opinion on this decision remains as divided as it was when it was delivered. Professor Jack Balkin of Yale Law School has written as follows about “high politics” and “low politics” on the US Supreme Court: “It is okay for judges and justices to have constitutional politics, to have larger visions of what the Constitution means or should mean and what rights have or should have.” To him this is an example of “high politics” and he argues “there is nothing wrong with judges having such views”.  On the other hand Prof. Balkin castigates judges who pursue “low politics” which he describes as the conscious inclination and effort to manipulate doctrine and legal principles to give an advantage to a particular group or political party.

Further, Prof. Balkin cites the decision of the US Supreme Court in Bush vs. Gore as an example of “low politics”. For avoidance of doubt, I consider the majority decision in Raila vs. Uhuru as a classical example of “low politics” on the part of Kenya’s Supreme Court. It bears adding that in his dissenting opinion Justice Jacktone Ojwang suggested that it was easier to understand the majority judgement from a political rather than a legal perspective. On her part Justice Njoki Ndung’u observed as follows in her dissenting judgment:

There was a verifiable paper trail which the Court could use to verify the various allegations and which was not used. The effect of the judgement was to deny Kenyans their right to franchise.

My friend and mentor Dr. Gibson Kamau Kuria has often persuaded me to view the majority decision as a game changer in Kenya’s electoral jurisprudence but I am yet to be convinced about the juridical basis of reversing the sovereign expression of people’s because – as the majority argued – “ contrary to popular view, the results of an election in terms of numbers can be overthrown if a petitioner can prove that the election was not conducted in terms of the principles laid down in the Constitution and the applicable law” on one hand and their finding that “the tallying process affected the validity of the results” on the other hand.

To be sure, political developments in the wake of the nullification of Uhuru’s election and the subsequent handshake with Raila Odinga have fortified the following commentary I published in the Sunday Nation in September, 2017:

From the standpoint of constitutionalism the Supreme Court judgement is a big win for the 2010 Constitution in three respects. First, the supremacy of the Constitution is real and not just a hollow principle. Secondly, the decision has affirmed that when push comes to shove, law trumps politics under the new constitutional order and it will help the Jubilee leadership to take this lesson to heart from now henceforth. Thirdly, the majority has restated the obligation of all public officers to obey the law and to take it seriously because everything – whatever the consequence – is seemingly fair game to the judges during the era of Chief Justice David Maraga and it pays to do so.

From the standpoint of democracy, the majority decision is a terrible scandal, politically naive and incredibly lacking in statecraft wisdom in three respects. First, in the absence of any primary challenge by NASA to the voting process, counting of votes and declared result, the notion that an elections court can overturn the outcome based on grievances over secondary matters in the electoral process is bound to scandalise the citizens of any working democracy. In a sense Uhuru’s ungracious comment that six people have elevated their opinion of the 2017 general election above the rights of 40 million Kenyans is not without merit.

Secondly, the reaction of the NASA leaders to their historic court victory shows the political naivete of the Supreme Court majority. The court made two orders, namely invalidation of Uhuru’s re-election and the order for a fresh election within 60 days in accordance with the Constitution. On the face of it, NASA has been given a second chance to win the presidential election but this is clearly not the way its leaders see it.  Given their revolutionary tendencies, NASA leaders are reading the judgement as a complete negation or delegitimation of IEBC and Jubilee’s victory in the General Election. Therefore within 60 days the leaders of NASA want to overthrow and remake the electoral order which is not possible and the attempt amounts to defiance of the Constitution and the Supreme Court orders. In my view, the majority had no anticipation of the political endgame of their decision and at the end of sixty days I would not be surprised to see egg on their faces.

Thirdly, Kenya is both a young democracy and a fragile state whose best efforts should be spent improving the welfare of its citizens as opposed to puritanical pursuit of philosophical principles. Judicial wisdom enjoins judges in the higher judiciary to be statesmen in discharging their functions. In practical terms, judges should as much as possible uphold democratic outcomes and respect lawful decisions by actors in the political realm. Above all, judges should avoid decisions that may trigger constitutional crises. In the Raila petition, the Supreme Court has, without just cause, let a puritanical interpretation of the Constitution to prevail over legitimate democratic outcome. Neither the winners or losers before the Supreme Court are content with its actual decision. The way I see it, Kenya will be very fortunate to escape a serious constitutional crisis by the end of the 60 days period for holding the fresh presidential election.

Apart from Uhuru’s vow in September, 2017 to revisit the judiciary, which has engendered unprecedented political hostility against the Courts, the majority decision dealt a massive shock on Kenya’s constitutional order as attested by the coup against Deputy President Ruto and de facto purge from government, the constitutional amendment project under Building Bridges Initiative (BBI) and the emerging political revolt of the peasants, the proletariat, boda bodas, free felons and the underclass under the banner of the Hustler Nation. 

On closer reflection, it appears to me that history could very well remember Maraga as the spiritual father of the Handshake and the political order that will be created by the political contest between the pro-BBI political actors and the captains of the Hustler Nation, since the political events in Kenya since January, 2018 cannot be separated from the shock of the Maraga-led majority to annul Uhuru’s re-election result.

Maraga as the Chief Judge

Basically, under Article 163 of the Constitution the Supreme Court has four kinds of jurisdictions. First, it has exclusive jurisdiction to determine presidential election petitions. Secondly, it is the final appellate court in any case involving the interpretation or application of the Constitution. Thirdly, the Supreme Court may give an advisory opinion at the request of the national government, any state organ or any county government with respect to any matter concerning county government. Fourthly, the Supreme Court hears appeals in any case in which the Supreme Court or the Court of Appeal, certifies that a matter of general public importance is involved. Evidently, three out of the four kinds of jurisdictions are overtly political or potentially heavy-laden with political controversies. In my view, the best yardstick to determine the contribution of any supreme court justice to jurisprudence should stem from cases under Article 163 4(b) jurisdiction concerning cases of general public importance.

Further to the foregoing, the quorum of the Supreme Court is five judges meaning that a judge may be associated with great judgements when in reality he or she was a serial passenger with no more contribution to jurisprudence than a few sentences or paragraphs. This is particularly so because unlike in the British appellate courts (Court of Appeal and House of Lords) there is no requirement for every judge to deliver their separate opinions. Accordingly, in the circumstances of Kenya and the USA, for example, we can learn more about decisions of a supreme court judge from their lone dissenting opinions than in majority decisions.  

It bears emphasis that the true value of dissenting opinions is measured by the extent to which they contribute to constitutional, social or political discourse on one hand and their long term jurisprudential value in terms of influencing future courts on the other hand.  In the introduction to his book Dissent and the Supreme Court, Professor Melvin I. Urofsky, a famous American legal historian, underscores the value of dissenting judgements as follows:

In 1835, a French visitor to the United States, Alexis de Tocqueville, noted that “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” Where other societies have sometimes taken to the streets to resolve important questions of government, in the United States we go to court both for private law matters, such as contract or tort issues, and for public law. It is one of the great strengths of our system, and it places a great deal of power in the hands of the nine men and women who sit in the Marble Palace in Washington. I have always told my students that only the hardest cases get to the Supreme Court; if the issue is easy, it is resolved in the lower courts. Because the questions are hard, and because they cause disagreement among the people, it is not surprising that the justices of the high court will also disagree.  But all of them understand that just because a majority decided that “A” is right in a particular case, it does not mean it will always be the law. The dissenter will point out what he or she perceives to be the weakness of the majority opinion, the faulty constitutional reasoning, or a failure to understand the actual facts of the case. If the dissent is strong enough, if it is well reasoned, it may persuade other judges in the future to overturn the majority decision and accept the minority view.

Assuming that my research did not fail me, it appears that Chief Justice Maraga did not participate in many court cases probably because the Constitution vests upon him too many functions at the expense of his principal job as the Chief judge, whose main job is to safeguard, shepherd and actualize the benefits of law and justice to society and individual litigants.  However, in December, 2019 CJ Maraga delivered two dissenting opinions concerning the law and practice of arbitration in Kenya that I am convinced – for better or for worse – may have a defining and enduring impact on jurisprudence in this area of law. These two dissents are remarkable not only because of their outcomes in terms of law and justice but also because in my considered opinion, unlike the majority decision, CJ Maraga expressed himself in a manner that manifested greater sensitivity to the cause of justice and fidelity to the Rule of Law.

On 6th December, 2019 the Supreme Court delivered two separate judgements from two Rulings of differently constituted benches of the Court of Appeal that found that there is no right of appeal to that Court following a decision made under Section 35 of the Arbitration Act 1995. In both of these decisions, CJ Maraga delivered dissenting opinions to dismiss the appeals while the majority of Justices Ibrahim, Wanjala, Njoki and Lenaola, SC JJ allowed the appeals and remitted the respective appeals to the Court of Appeal for hearing on an expeditious basis.

In Nyutu Agrovet Limited vs. Airtel Networks Kenya Ltd & Another (2019) eKLR, the appeal was heard by the Supreme Court pursuant to a Certification for leave to appeal under Article 163(4)(b) of the Constitution. At paragraphs 71 and 72 of the judgement, the majority in finding that in exceptional cases the Court of Appeal should entertain appeals under Section 35 of the Arbitration Act held as follows:

[71]  We have in that context found that the Arbitration Act and the UNCITRAL Model Law do not expressly bar further appeals to the Court of Appeal. We take the further view that from our analysis of the law and the dictates of the Constitution 2010, Section 35 should be interpreted in a way that promotes its purpose, the objectives of the arbitration law and the purpose of an expeditious yet fair dispute resolution legal system.  Thus our position is that, as is the law, once an arbitral award has been issued, an aggrieved party can only approach the High Court under Section 35 of the Act for Orders of setting aside of the award. And hence the purpose of Section 35 is to ensure that Courts are able to correct specific errors of law, which if left alone would taint the process of arbitration. Further, even in promoting the core tenets of arbitration, which is an expeditious and efficient way of delivering justice, that should not be done at the expense of real and substantive justice. Therefore, whereas we acknowledge the need to shield arbitral proceedings from unnecessary Court intervention, we also acknowledge the fact that there may be legitimate reasons seeking to appeal High Court decisions.

[72]  Furthermore, considering that there is no express bar to appeals under Section 35, we are of the opinion that an unfair determination by the High Court should not be absolutely immune from the appellate review. As such, in exceptional circumstances, the Court of Appeal ought to have residual jurisdiction to enquire into such unfairness. However, such jurisdiction should be carefully exercised so as not to open a floodgate of appeals thus undermining the very essence of arbitration.  In stating so, we agree with the High Court of Singapore in AKN and another (supra) that circumscribed appeals may be allowed to address process failures as opposed to the merits of the arbitral award itself.  We say so because we have no doubt that obvious injustices by the High Court should not be left to subsist because of the ‘no Court intervention’ principle.

However at paragraph 77 the majority circumscribed this limited jurisdiction further as follows:

[77]  In concluding on this issue, we agree with the Interested Party to the extent that the only instance that an appeal may lie from the High Court to the Court of Appeal on a determination made under Section 35 is where the High Court, in setting aside an arbitral award, has stepped outside the grounds set out in the said Section and thereby made a decision so grave, so manifestly wrong and which has completely closed the door of justice to either of the parties.  This circumscribed and narrow jurisdiction should also be so sparingly exercised that only in the clearest of cases should the Court of Appeal assume jurisdiction.

In his dissenting opinion CJ Maraga held at paragraph 103-107 as follows:

[103] The appellant also raised the issue of access to justice. It argued that access to justice includes the right of appeal. As such, the restriction that Section 10 purports to impose deprives the appellant access to the appellate justice. It argued that the deprivation of the right of access to justice can only be on express words and not by implication from the silence of a provision as the one in Section 35 of the Arbitration Act.

[104] Arbitration does not deny access to the Courts. Courts are but one of the means of resolving societal disputes. The other modes of dispute resolution, as stated in Article 159(2)(c) include “reconciliation, mediation, arbitration and traditional dispute resolution mechanisms…” Every litigant has the right to choose which mode best serves his or her interests. As AM Gleen posited, “Parties enter into arbitration agreements for the very reason that they do not want their disputes to end up in court.”[6]  Once one has made that choice, one cannot be heard to claim that one’s right of access to justice has been denied or limited. As the United States’ Second Circuit of the Court of Appeal also stated in Parsons Whittemore Overseas Co Inc v. Société Générale de l’Industrie du Papier (RAKTA).

“By  agreeing  to  submit  disputes  to  arbitration,  a  party  relinquishes  his  courtroom  rights … [including the appellate process]  in   favor   of   arbitration   with   all   of   its   well-known   advantages   and   drawbacks.’” [7]

[105] Finally, the appellant argued that the principle of finality in arbitrations applies only to an arbitration award itself and not to any Court proceedings founded on it. I do not think this is correct.

[106] One of the main objectives of preferring arbitration to Court litigation is the principle of finality associated with doctrine of res judicata that is deeply rooted in public international law. Section 32A captures this principle: “Except as otherwise agreed by the parties, an arbitral award is final and binding upon the parties to it….” Most parties, especially those engaged in commercial transactions, desire expeditious and absolute determinations of their disputes to enable them go on with their businesses.[8] They require a final and enforceable outcome. That is why the Section goes on to limit recourse “against the award otherwise than in the manner provided by this Act.” 

[107] In the circumstance, I concur with the respondent that, read together, Sections 10 and 35 of the Arbitration Act restrict judicial intervention in the arbitral process to expedite dispute resolution while maintaining the sanctity of the principle of finality in the entire arbitral process. If the principle of finality is limited to the arbitral awards only and not to any court proceedings founded on them as the appellant contended, then the objectives of arbitration would be defeated and arbitration will be “a precursor to litigation.”[9]  This is because any Court proceedings that render an award unenforceable affects the principle of finality.

The second case namely Synergy Industrial Credit Ltd vs. Cape Holdings Limited (2019) eKLR was an appeal from the Court of Appeal under Article 163(4)(a) of the Constitution.  Like in the Nyutu decision, the Court majority held at paragraphs 86 – 90 as follows:

[86]  For the avoidance of doubt, we hereby restate the principle that not every decision of the High Court under Section 35 is appealable to the Court of Appeal. It also follows therefore that an intended appeal, which is not anchored upon the four corners of Section 35 of the Arbitration Act, should not be admitted. In this regard, an intended appellant must demonstrate (or must be contending) that in arriving at its decision, the High Court went beyond the grounds set out in Section 35 of the Act for interfering with an Arbitral Award.

[87]  In applying the above criteria, it would be expected that the Court of Appeal would jealously guard the purpose and essence of arbitration under Article 159(3)(d) so that floodgates are not opened for all and sundry to access the appellate mechanism.  Similarly, it would be expected that a leave mechanism would be introduced into our laws by the Legislature to sieve frivolous appeals and not create backlogs in the determination of appeals from setting aside of award decisions by the High Court.

[88] In making the above finding, we are affirming the position taken by some benches of the Court of Appeal that Article 164(3) is a jurisdiction that is tied to a party’s right to appeal to that Court and to completely deny that right would be inimical to the spirit and tenor of the Constitution, 2010.

[89] Applying therefore the above principles, does the case at hand justify the Court of Appeal’s intervention? Is there anything possibly unfair or arbitrary in the High Court’s decision? In answer to that question, we note that the dispute at hand can be traced to events that took place over 10 years ago. As can be deduced from the pleadings, whereas the parties started as friends, they have turned against each other and the existing conflict between them remains unsolved. It has thus been submitted that the High Court decision gave no further directions as to whether fresh arbitration proceedings should commence or not, and hence, it was urged that the Petitioner was left, so to speak, in limbo. This is after the High Court had set aside the award in its entirety. There seems to be a consensus, as can also be perceived from the pleadings, that some substantial amount of money had been advanced to the Respondent by the Petitioner. With the setting aside of the award, the fate of the said money advanced to the Respondent remains unknown.

[90] In the circumstances, various questions would necessarily arise; would a Judgment that leaves a party in such a precarious position be said to create confidence in the administration of justice? Would the principle of minimal courts’ intervention in arbitration matters supersede the need to correct an injustice? Our position is that where allegations of such manifest unfairness have been made, they should not be left incapable of a higher Court’s review. And it is on that basis that, we hold that in this case, the Court of Appeal should have assumed jurisdiction to hear the Petitioner’s appeal arising from the decision of the High Court under Section 35 of the Arbitration Act limited to the relevant consideration expressed above.

In his dissenting opinion CJ Maraga expressed himself at paragraphs 147 – 154 of the Judgement as follows:-

[147] Following the shift it made with the repeal of Arbitration Act of 1968 and the enactment of the Arbitration Act of 1995, Kenya would backpedal if the appellant’s argument that Article 164(3) ipso facto grants both the jurisdiction and right of appeal against all High Court decisions, including those made in arbitral proceedings, is accepted. That would also jettison out of the window the principle of finality in arbitral proceedings.

[148] The principle of finality in arbitral proceedings, and in particular the caution in the failure to uphold it, has attracted considerable scholarly comments. In his article, ‘Finality’ Bar News, 2013, A. M Gleeson QC observes that “… if an arbitral process is treated as if it merely adds one layer to the hierarchy of potential decision-making then the system is self-defeating.”[27]  Another Scholar, Dr. Katherine A. Helm adds that “If courts were free to intervene more liberally in the arbitration process, the advantage of a speedy and less costly resolution of disputes by private arbitration mechanisms would certainly disappear.”[28]

[149] Because the Kenyan Arbitration Act of 1995 puts emphasis on the concept of finality in arbitration and the above stated public policy to promote arbitration as encapsulated in Article 159(2)(c), save as stated in the Arbitration Act, awards should be impervious to court intervention as a matter of public policy. Unwarranted judicial review of arbitral proceedings will simply defeat the object of the Arbitration Act. The role of courts should therefore be merely facilitative otherwise excessive judicial interference with awards will not only be a paralyzing blow to the healthy functioning of arbitration in this country but will also be a clear negation of the legislative intent[29] of the Arbitration Act.

[150]  In commercial transactions, disputes are often about money, and more often than not, large sums of money. “[A]nd where money is concerned there are not many good losers….”[30] In an adversarial system as ours, to open unwarranted doors to court intervention in arbitral proceedings, as the Singaporean Court of Appeal observed in the said case of AKN & Another v. ALC and Others and other appeals (supra) “through the ingenuity of counsel,” we shall have appeals on literally all issues “disguised and presented as … challenge[s] to process failures during the arbitration.”[31]  And we know what that means: arbitral awards or decisions on them shall be subject to court challenges on every issue. Arbitration will therefore be an extra cog in the gears of access to justice through litigation or “a precursor to litigation.”[32] By the time the court determines the issue, the matter will have dragged in court for years. Arbitrations will thus prolong dispute resolution and be self-defeating. In such a scenario, it would be more efficacious to abandon arbitration altogether and litigate all disputes in courts of law.

[151] As stated, timelines in the performance of contracts and speed in the disposal of disputes are the hallmarks of the current competitive commercial environment. The importance of arbitration as an ADR mechanism cannot be over-emphasized. “Parties enter into arbitration agreements for the very reason that they do not want their disputes to end up in court.”[33] The common thread that runs through most arbitration statutes based on the UNCITRAL Model Law is the restriction of court intervention except where necessary and in line with the provisions of the Acts of various jurisdictions.

[152] Kenya’s boasting as the arbitration centre in the East African region cannot hold if Kenyan courts do not reflect on the effect of their decisions in arbitral proceedings. The words of Andrew P. Tuck, in his treatise, The Finality Question: Appellate Rights and Review of Arbitral Awards in the Americas[34] are particularly apposite with regard to the appellate jurisdiction in arbitral proceedings. He observes that in the selection of the seat of arbitration, parties often pay regard to, inter alia, the right of appeal and judicial review in that jurisdiction; and also finality of an arbitral award and whether the jurisdiction is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. This is because, in his view, which I share, the rights of appeal and review;

can seriously frustrate the advantages of international arbitration … over the vicissitudes and uncertainties of international business litigation.”[35]

[153] And as Christa Roodt, in her article titled Reflections on finality in arbitration[36], warned, “If a state’s judicial institutions fail to accord respect for rights established under international law, their judicial decisions cannot demand pluralist respect.” In other words if decisions of Kenyan courts disregard established principles of international arbitration law, Kenya will be shunned as both an investment destination and a seat of arbitration. In the words of Nyamu J. (as he then was) in Prof. Lawrence Gumbe & Anor v. Hon. Mwai Kibaki & Others[37], that will reduce Kenya into  “a pariah state” and cause it to “be isolated internationally”.

[154] In the circumstances, allowing appeals where the Arbitration Act states otherwise would in my view, as stated, turn arbitration into “a precursor to litigation.”[38] The Kenyan courts must therefore, “as a matter of public interest”[39], interpret the provisions of the Arbitration Act in a manner that seeks to promote and embellish arbitration, rather than emasculate and thus render it redundant. As the United States’ Second Circuit of the Court of Appeal stated in Parsons Whittemore Overseas Co Inc v. Société Générale de l’Industrie du Papier (RAKTA),

“By  agreeing  to  submit  disputes  to  arbitration,  a  party  relinquishes  his  courtroom  rights …

  in   favor   of   arbitration   with   all   of   its   well-known   advantages   and   drawbacks”[40]

The judgement of the Supreme Court of Kenya in the case of Synergy Industrial Credit Ltd and Cape Holdings Ltd is particularly striking because of its peculiar facts and enormity of Award of the Arbitrator Mr. James Ochieng Oduol on the one hand but also because of the subsequent litigation ordered by the majority in the judgement of SCK aforementioned on the other hand. The facts and the dispute between the parties were well summarized at paragraphs 2 – 6 of SCK’s judgement as follows:

[2]                    Approximately 10 years ago, the parties before the Court entered into a partly oral and partly written sale agreement whereby the Petitioner offered to purchase office blocks and parking spaces from the Respondent. Later on, a dispute arose and according to the terms of the agreement, a sole arbitrator was to be appointed to resolve it. By the time the dispute arose, the Petitioner had disbursed a significant amount of money to the Respondent, even though the said office blocks and parking spaces were still undergoing construction.

[3]                    By an award dated 30th January 2015, the Arbitrator, Mr. James Ochieng Oduol, ordered the Respondent to pay the Petitioner a sum of Kshs.1,666,118,183.00, being the amount of money advanced to the Respondent, accruing interest, loss of income opportunity, exchange fluctuations and costs. Dissatisfied by the award, the Respondent filed an application at the High Court under Section 35(1), 5(2)(a)(iv) & (b)(i) & (ii) of the Arbitration Act seeking to set aside the award. The Petitioner on its part filed an application at the High Court seeking to enforce the award.

[4]                    Upon considering the matter, the High Court (Kariuki J) found that the Arbitrator had acted outside his scope of reference when he invoked the alleged oral agreements between the parties as opposed to confining himself to the 14 written agreements entered into by the parties. Further, that the Arbitrator had unlawfully attempted to re-write the 14 agreements between the parties. On the issue of advance payment, the Court found that the Arbitrator went outside his scope by determining the said issue since he had no authority to investigate the alleged pre-contract negotiations. That further, it was not within the scope of the Arbitrator to determine the issue of loss of income opportunity.

[5]           With regard to the award on alleged exchange rate fluctuation loss, the High Court agreed with the Respondent that the Petitioner had decided on its own volition to borrow money towards the purchase of the office blocks and parking spaces in foreign currency yet the issue was not a term of contract. As such, the Court held that the Arbitrator exceeded his scope and mandate by assessing the foreign exchange loss since the currency used in the agreement was Kenya shillings. The Court also made a finding that the alleged advance payment paid in US Dollars was against public policy since it was neither part of the contract nor was it contemplated by the parties and more so, it went contrary to the law of contract generally.

[6]           Consequently, by a Ruling dated 11th March, 2016, the High Court found that all the issues addressed by the Arbitrator fell outside the scope of the reference of the Arbitrator and so it set aside the award in its entirety and dismissed the Petitioner’s application for the enforcement of the award.

Following the order of the SCK’s majority directing the Court of Appeal to expeditiously and on a priority basis to determine the merits of the Appeal of Synergy Industrial Credit Ltd against the Ruling of the High Court delivered on 11th March, 2016 a bench compromising of M’Inoti, Sichale and J. Mohammed, JJ.A was constituted to deal with the matter. According to the learned appellate judges the main issue in the appeal was whether the High Court (Kariuki J) erred by setting aside an arbitral award in favour of the appellant, Synergy Industrial Ltd, on the ground that the arbitral tribunal had determined issues beyond the scope of the reference.

Upon hearing the parties, by a judgement delivered on 6th November, 2020 the Court of Appeal held that the High Court judge was not justified in setting aside the arbitral award on the grounds that the arbitral tribunal had dealt with a dispute that was not contemplated by the parties, or one beyond the terms of the reference to arbitration or had decided matters beyond the scope of the Reference.

This decision of the Court of Appeal is significant because it was the first test case of the exceptional jurisdiction created by the Supreme Court majority for the Court of Appeal to hear and determine appeals from decisions of the High Court under Section 35 of the Arbitration Act. Yet the appeal seems to have been determined as a regular appeal as opposed to an exceptional case to prevent a miscarriage of justice by the High Court.  As adverted to above the SCK majority referred the remitted case back to the Court of Appeal on the contentious premise that there was manifest unfairness and arbitrariness against Synergy Industrial Credit Ltd in the High Court decision which would justify the Court of Appeal’s intervention to correct an injustice which would otherwise undermine confidence in the administration of justice.

Five observations should be made in this preliminary analysis of these disputes. First, reading the Ruling of the High Court, it is difficult to see any manifest injustice or arbitrariness in it. In my view, Justice Kariuki would be guilty of aiding and abetting a miscarriage of justice if he had failed to set aside the Award by Mr. Ochieng Oduol. To be sure, the suggestion by the SCK majority that the High Court ruling left Synergy in limbo is fairly frivolous because if any direction was required on the way forward this could easily be done through a review application or under the slip rule jurisdiction.

Secondly, it should concern legal analysts that the curiosity of the Supreme Court majority was not aroused about the possibility of injustice against Cape Holdings Ltd if the Award of the Arbitrator was upheld in those circumstances. Thirdly, the subsequent judgement of the Court of Appeal does not bother to identify what manifest injustice and arbitrariness exists in the High Court Ruling to justify its intervention and setting aside.

The fourth observation concerns the Award of the Arbitrator Ochieng Oduol. Except in cases where arbitrators were found to be simply incompetent, it is not easy to find an Award that deserved to be set aside more. This award is so extravagant in scope, so blatant an atrocity on rules of fairplay, so disproportionate in terms of justice and so lacking in scruples in terms of fidelity to the rule of law that it belongs in categories of cases commonly described as miscarriage of justice. For whatever reason, it disturbs me that a SCK majority that justified judicial intervention in order to prevent manifest injustice against a litigant could have failed to see that enforcing the subject Arbitral Award would invariably result in both unjustly enrich of one litigant and unalloyed miscarriage of justice against the other litigant.

Finally, the subsequent judgement of the Court of Appeal is a solid vindication of CJ Maraga’s dissent since it provided the only safe route to avoid the miscarriage of justice contained in the Arbitrator’s Award. Of course, it remains to be seen what the full implication of the decision of the SCK majority will turn out to be in the law and practice of arbitration in Kenya in the fullness of time. What we can be sure of for now is that the above two dissents of CJ Maraga have assured him the pride of place in future development of jurisprudence in this critical area of law.

Maraga as Head of the Judiciary

As head of the Judiciary, the Kenyan Chief Justice serves as the administrative head of the judiciary and as Chairman of the JSC. Further the transitional provisions of the 2010 Constitution vested upon the Chief Justice the power to ensure the smooth implementation of the Constitution. In these twin capacities, the Chief Justice is therefore responsible for coordinating with other arms of government to ensure effective operations of the institution and more importantly to safeguard, promote and secure proper administration of law and order and the Rule of Law.

Perhaps it is not entirely the fault of CJ Maraga as regards the state of the judiciary on the 12th January, 2021 when he retired – which also happens to be the birthday of yours truly – the State of the Judiciary could not be objectively described in positive or optimistic terms. The judicial branch of government seems to be under siege from both the Executive and Parliament, and pointedly this may turn out to be tragic as the high-stakes Kenyatta Succession, BBI Referendum and 2022 general elections beckon.  Should we blame the CJ Maraga for this dismal state of the judiciary?

There are three yardsticks to measure Maraga’s score card in this respect, namely the stalled appointments of judges, unjustified cuts of the Judiciary budget and systematic delegitimation of the authority and prestige of the courts.

Appointment of Judges

On 15th February, 2019 CJ Maraga, as the head of the Judiciary, declared vacancies in the office of Judge of Court of Appeal, Judge of the Environment and Land Court (ELC) and Judge of the Employment and Labour Relations Court (ELRC). Subsequently the JSC advertised the vacancies and called for applications from qualified interested persons within the set timeline. Upon conducting interviews of shortlisted applicants, the JSC recommended eleven (11) persons for appointment as judges of the Court of Appeal, Twenty (20) persons for the ELC and ten (10) persons for the ELRC and forwarded the names to the President for formal appointment as required by Article 16(1)(b).

Following the failure by the President to appoint the recommended persons as judges, in mid-September, 2019 a case was filed in the High Court namely Adrian Kamotho Njenga vs. Attorney General & 2 Others (2020) eKLR in which the petitioner’s case – as summarized in the resulting judgement – was as follows:

6.                  The Petitioner states that the 1st Interested Party conducted interviews, and on 23rd July, 2019, recommended 11 persons for appointment as Judges of the Court of Appeal and forwarded the names to the President for formal appointment as required by Article 166(1) (b) of the Constitution. He further states that after concluding interviews for the ELC and ELRC, on 13th August 2018, the 1st Interested Party recommended for appointment as judges, 20 persons for the ELC and 10 persons for the ELRC, and forwarded the names to the President for formal appointment as required by Article 166(1)(b).

7.                  It is the Petitioner’s case that the President has not appointed the persons recommended by the 1st Interested Party to their positions as judges. According to the Petitioner, the President has failed to act within a reasonable time, in the performance of a critical constitutional function as required by the Constitution.

8.                  It is the Petitioner’s view that a reasonable timeline for performing a constitutionally prescribed act is fourteen days. He states that failure to discharge a constitutional obligation within that period constitutes unreasonable and unjustifiable delay, given the urgent need to plug the extreme deficit of judges in the superior courts.

9.                  The Petitioner further avers, that the President’s failure to effect the 1st Interested Party’s recommendations violates his fundamental rights, those of persons designated as judges of the superior courts and the public at large, to proper administration of justice; that the action violates the principles of the rule of law, social justice, good governance, equality, transparency and accountability under Article 10 of the Constitution. He also argues that the failure to appoint violates the wider citizenry’s right of access to justice as guaranteed by Article 48 of the Constitution.

The same judgement at paragraphs at paragraphs 64, 77 – 81 summarises the response of the Attorney General as follows:-

64. The Respondent opposes the Petition through a replying affidavit by Mr. Joseph K. Kinyua, Head of Public Service in the Office of the President, sworn on 18th October, 2019, and written submissions dated and filed on even date.

77. In the Respondent’s view, the prospect that the President should first appoint and thereafter consider the constitutional principles and their impact, either by way of judicial review or otherwise, would be absurd, given the irreversibility of the decision to appoint.

78. According to Mr. Kinyua, the President had received adverse reports in respect of some of the persons recommended for appointment as Judges after their names were published in the media. He states that it would be irresponsible and contrary to his oath of Office, for the President to appoint Judges or any other public or State officer to office, where serious questions have been raised about their integrity. This, he argues, is more serious for Judges who enjoy security of tenure and whose probity and integrity should be above reproach.

79. It is the Respondent’s case that the President is actively consulting with relevant State organs with a view to taking appropriate legal and administrative action, including a review of the recommendations, actions that have since been suspended pending the hearing and determination of this petition.

80. According to the Respondent, independence of the Judiciary is not only guaranteed by the mode of appointment of Judges, but also their terms of service, tenure in office, financial autonomy, mode of discipline and removal. To this end, the Respondent submits that it is important that the provisions regarding the independence of the judiciary are looked at in a wholesome way rather than in an itemized manner. The Respondent asserts that this was the position accepted by the Court in Law Society of Kenya v Attorney General & 2 others (supra).

81. Relying on the decision in Re the matter of Speaker of the Senate & another (supra) the Respondent argues that the system of checks and balances in the Constitution is geared towards preventing autocracy and to restrain institutional tyranny. The Respondent contends that an interpretation that makes recommendations by the 1st Interested Party not subject to any other state organ in the appointment of Judges would be contrary to the architecture of the Constitution.

Upon analysis of the arguments and submissions of the contending parties a three-judge bench of the High Court comprising Justices C. A. Achode, J. A. Makau and E. C. Mwita held as follows at paragraphs 123 – 126; 136 – 138, 144 in allowing the Petition:

123. The NIS as an organ established under the Constitution, is required to act in a manner consistent with the Constitution. Section 3(1) of the National Intelligence Service Act, 2012, provides that:

“The Service shall, in fulfilling its mandate, observe and uphold the Bill of Rights, values and principles of governance under Article 10(2), the values and principles of public service under Article 232(1) and the principles of national security in Article 238(2) of the Constitution…”

124. The NIS is also required by section 3(1)(c) of the Act, to comply with the constitutional standards of human rights and fundamental freedoms. Article 47 falls within the Bill of Rights that the NIS is required to comply with. The principles in Article 10(2) include transparency, accountability and good governance that bind the NIS.

125. In that regard, we have no doubt that the founding values in our constitutional architecture leave no room for mob lynching. We say so since transparency and accountability means that every State organ, State officer, public officer, institution or agency, must account for its actions, including those who hold the view that some of the persons recommended for appointment as judges have integrity issues. The persons adverted to in the said letter, were entitled to know what the allegations against them were and to respond to them. Opaque statements or allegations of lack of integrity, without disclosure of what the specific issues were, runs counter to the spirit of the Constitution and its expansive Bill of Rights.

126. The NIS, having voluntarily alluded to the existence of some adverse information about some of the applicants, yet declined to disclose the particulars when called upon to do so by the 1st interested party, it acted contrary to the dictates of the Constitution and its own statute which require it to act in accordance with the Constitution and observe the highest standards of human rights and fundamental freedoms.

136. We are unable to agree with the Respondent that the President has constitutional or legal mandate to act contrary to the 1st Interested Party’s decision recommending persons for appointment as judges made in accordance with the Constitution and the law. It has not been demonstrated to this court that there is any provision in the Constitution or statute that confers such power on the President.

137. Adverse reports, if any, against some, or any of the persons recommended for appointment, should have been placed before the 1st Interested Party, the only State organ that is constitutionally mandated to determine suitability of persons to recommend for appointment as judges. Once the NIS declined to give the information, the 1st Interested Party had no basis whatsoever to make adverse findings against any of the persons said to be adversely mentioned. In the circumstances the 1st Interested Party properly discharged its mandate as required by the Constitution and the Judicial Service Act.

138. We state without hesitation, that integrity is one of the founding values in our Constitution. In our view, lack of integrity cannot be “classified information”, and there was no justification for not disclosing such information to the 1st Interested Party. As we have already stated, classified information must have something to do with national security and that certainly, cannot include an allegation that one has no integrity.

144. We agree with the court in the above decision that the constitutional scheme in coming up with this new way of appointing judges was intended to avoid sliding back to the old system where appointment of Judges could not be traced to any particular criteria. To accede to the position taken by the Respondent in this petition, that the President has any powers in determining who to appoint, would amount to allowing a proposition to take the people of Kenya back to an era they overwhelmingly discarded when they enacted and adopted the current Constitution. This would certainly amount to this court acting contrary to the Constitution.

The judgement of the High Court was delivered on 6th February, 2020 and as I write this commentary exactly one year later, the President is yet to comply with the declaration that he had acted contrary to the Constitution. Fortunately for the President, it is highly unlikely that the Kenyan Parliament will do anything about this patent violation of the Constitution. Should we then blame CJ Maraga for the impediment in the administration of justice engendered by a shortage of judges?

In good conscience, however irksome a person the heads of other arms of government may have found CJ Maraga, there can be no justification for subversion of the judicial arm of government in order to spite him. To the President, it bears emphasis that the Constitution provides he is both head of state and head of the government.  Thus understood the President is the ultimate head of the judiciary and any failure in the law, order and justice sectors must finally fall on his desk. In other words, Maraga’s success is ultimately the President’s success and vice-versa. Probably the President may not be aware of this subtle constitutional position and so we must blame the Attorney General and any good lawyer he gives the audience for the many own goals the President has been scoring against the Kenyan State with regard to the Judiciary.

The Judiciary’s diminishing budget

Article 95(4)(b) provides that one of the functions of the National Assembly is to appropriate funds for expenditure by the national government and other national state organs. As adverted to above, the current cohort of MPs is not conscious of their constitutional job description and the few who are aware have simply chosen to defer to the Executive’s idiosyncrasies and petty mind games. I reckon that the only solution is that someone who understands the phenomenon of presidential own goals will sooner than later get the opportunity to explain to President Uhuru the folly of his actions.  More realistically, Kenyans will simply have to elect another Parliament with a critical number of members who understand their job descriptions beyond CDF and filling in mileage claim forms.

Maraga and Constitutional Implementation Mandate

Article 261 provides, inter-alia, that the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament in the event of Parliament failing to enact any legislation required by the Constitution to be enacted to govern a particular matter within the period specified in the Fifth Schedule, commencing on the effective date. To most people’s surprise in September, 2020 CJ Maraga did exactly that concerning the alleged failure by Parliament to enact legislation to implement the two thirds gender rule. In my opinion the President has no power to dissolve Parliament notwithstanding Article 261(8) of the Constitution.

More importantly, since 2010 no legislation has been tabled in Parliament to address the actual requirement under the Fourth Schedule of the Constitution. We need to understand that the Constitution applies the two thirds gender principle to the electoral system rather than the composition of Parliament. Thus whereas Article 81(c) of the Constitution provides that the electoral system shall comply with the principle that no more than two-thirds of the members of elective public bodies shall be of the same gender, Articles 27(8) provides that “the State shall take legislative and other measures to implement the principle that no more than two-thirds of the members of elective or appointive bodies shall be of the same gender”.

In Advisory Opinion No. 2 of 2012, a majority of the Supreme Court held that the gender principle set out in Articles 27(8) and 81(b) of the Constitution is not an enforceable right capable of immediate enforcement. Accordingly the Court majority ordered that legislative measures for giving effect to the two-thirds gender principle should be taken by 27th August, 2015.

Yet, notwithstanding my reservations about the CJ’s Advisory Opinion on the two-thirds gender rule, I salute Maraga’s courage to act in his best judgement. From our political history we know that very few public officials and even professionals act on the courage of their convictions and so this rare virtue should be celebrated whenever we see it. Finally, the CJ’s Advisory gives the President considerable leverage during the sunset of his political careers in his quest for the BBI reforms. Having so gifted the President with potent leverage during the sunset of his political career, one would expect that it is not too late for the President Uhuru to host a dinner to honour CJ Maraga, if nothing else for being the second chief justice under the 2010 Constitution and for swearing him upon his re-election.

It bears noting that the Constitution Amendment Bill, 2020 fronted by the BBI project does not propose any serious amendment of Chapter Ten on the Judiciary except introducing a frivolous amendment to provide for a judiciary ombudsman. For an administration that has long pretended there is something fundamentally wrong with Kenya’s Court system I expected that the BBI project would propose amendments on how the courts should be managed and judges appointed.

Now that it seems there was nothing of substance in the constant ranting by the Executive and Parliament, it will help for those political arms of government to do a handshake with the next chief justice to spare Kenyans the embarrassment of a two-legged State. On its part, the JSC must endeavor to recruit and recommend a chief justice of irreproachable integrity and solid learning whose choice will not shock people who mean well for Kenya. To conclude, let me quote Justice Story: “In human governments there are but two controlling powers, – the power of arms and power of laws. If the latter are not enforced by a judiciary above fear and above all reproach, the former must prevail, and thus lead to the triumph of the military over civil institutions.

The writer is a constitutional lawyer (kibemungai@yahoo.com).

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