What CJ Maraga lacks in color he more than makes up for in mental fortitude and a great sense of leadership
By Shadrack Muyesu
It is, frankly, not true – or fair – to say that David Kenani Maraga was a judge without a philosophy as has often been said about him. Throughout his two decades as a superior court judge, and more so in his last years of service at the Supreme Court, the good judge has distinguished himself as a naturalist to the core, in moral terms, a conservative, and, most importantly, in constitutional context, an activist – of sorts.
As a judge, Maraga was never the most flamboyant. In fact, outside annulling the presidential election of 2017, it would be difficult to pinpoint his contribution to the development of our laws. It is fair to say that his decisions were never rich nor his language the most colorful; yet that is not to say that he was not a great judge – well, at least not in my view.
For starters, Justice Maraga is bold – certainly much bolder than Dr Willy Mutunga before him who, whilst a hardcore activist, cowered at the first opportunity to strike a blow for the Constitution. And although he spent the rest of his tenure trying to claw back on his error, Dr Mutunga and the entire judicial system below him remained bound by their bad decision until Maraga came around.
Today, courtesy of Maraga, errors are no longer viewed as an acceptable part of the election process; instead, players are duty-bound to ensure compliance with the law. The Constitution allows for the Supreme Court to depart from its precedence, but it takes a bold Chief Justice to do that, and Maraga was one.
Even greater than boldness, what worked for the retiring judge was his wealth of experience both as a practitioner and as a part of the Bench. The convoluted decisions of the Mutunga Supreme Court came, in part because of an inexperienced Bench and an even more inexperienced judge for Chief Justice, which allowed them to be bullied by counsel. This would have never happened to Maraga. It never did.
There is also the question of judicial activism vis a vis judicial restraint. A progressive constitution such as ours cannot thrive in an environment of amoral formalism. In fact, more than being neutral arbiters, judges must actively campaign for constitutionalism. Oftentimes this requires departing from the black letter law to make contextual decisions as long as they are properly justified. Like his predecessor, Justice Maraga ticks this crucial box.
A ‘higher’ calling
All evidence points to Maraga the realist. This is not to mean that he was a liberal judge like Dr Mutunga or his contemporaries down south who pushed the independence constitution of South Africa. Rather, he is one who is greatly influenced by his spiritual definition of what is right and wrong. They say that our experiences often fuse into our personalities: as a church elder and a committed Christian, Maraga would not do what his Bible forbade him to do – it’s very obvious from how often he invoked God in his decisions.
Some will say that it is a dangerous thing (to invoke God in public discourse) and they would be right, but in Maraga’s case it has been a valuable addition. It is this belief in a higher calling that has enabled him to stand up to the perverted powers of the State when it would have been easier and safer to stay quiet. This is what I mean when I refer to him as a judicial activist – that is, not the liberal application of the constitution but activism in the true sense of the word – active campaign.
Many question his lack of depth when he was first appointed. In fairness, these questions still remain but we can all agree is that, what he lacks in color he more than makes up for in mental fortitude and a great sense of leadership. In my view, more than anything, this is what makes a great Chief Justice and David Kenani Maraga was one. (
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