Rally-hopping CJ Maraga is in breach of judicial decorum

There was uproar in the legal fraternity when Chief Justice David Maraga’s attended a political rally in his home county of Kisii in February, with those speaking out saying there had been no day in the history of Kenya that a CJ attended such an event.

It incensed the fraternity even more that the CJ was amongst those in the party that welcomed the President and later joined him in his tour of the region where they made several stopovers by the roadside. In one photo shared online, Maraga was third in line, after DP William Ruto and ODM leader Raila Odinga, to welcome the President.

The CJ would later be quoted as thanking government for taking development to his area!

The President launched medical infrastructure and equipment at the Kisii Level 6 Hospital and presided over the launch of a Sh2.25b Cancer Diagnostic Centre, to be funded by the Arab Bank for Economic Development in Africa and the Saudi Fund for development.

“When you have a situation where the Chief Justice is waiting in line in a crowd and waiting to be recognised… it is very bad manners,” decried Senior Counsel and Leader of Minority in the Senate, James Orengo.

The question that arises then is whether the CJ’s behaviour to attend a political rally is impeachable, or if is a mere breach of judicial decorum.

Summarily, attending of a political rally by the CJ does not fit into the five grounds of removal from office of a superior court judge as espoused under Article 168 of the Constitution, or even under 168(1) (b) which speaks to code of conduct.

Be that as it may, it is ill advised for the CJ to be going toe to toe with politicians in rallies. Impartiality and independence are core requirements of a judge, and perceptions count for everything for those on the bench.

For a CJ to freely mingle with politicians at rallies in times like now when high scale corruption thrives within the corridors of power – with suspects stopping at nothing to intimidate government’s anti-graft efforts, however cosmetic those efforts – reeks of lack of self-awareness on the part of the CJ.

A speaker at a rally might choose to prosecute a matter that is live in court to whip up the emotions of his or her tribesmen at a political rally. It happens every now and then. Where would that leave the CJ were it to happen right before him? What if the same matter came before him for adjudication in the Supreme Court, or even, as CJ, for setting up a Court of Appeal or High Court bench on the same matter?

What ails the CJ is a lack of character and style. That he attended the rally in his home county, moved with the politicians from one rally to another and hailed government for bringing development to his people really speaks to a CJ who is not aware of the intricacies of the office he holds.

Indeed, in the words of a city lawyer, “It is going to be difficult for [CJ David] Maraga to extricate himself from the public perception that he has been taken hostage by the Executive or has willingly joined it. A CJ cannot be doing this. Not under the Constitution of Kenya, 2010.” (