April 27th 2017

Top Stories / 2017 Elections

Powerful forces in last-ditch efforts to stop Maraga's appointment as Chief Justice

A school of thought has also sprung up questioning his commitment to 'progressive' causes. Accordingly, the judge's absence in the struggles for multiparty system when he was supposedly established as an advocate in private practice, should mark him out for the top job.

By Phillip MuleeSunday, 16 Oct 2016 17:40 EAT

The Supreme Court building, Seat of the CJ's authority.

Appeal Court judge Justice David Maraga's nomination by the Judicial Service Commission as the next Chief Justice elicited unexpected interest for an insider. Lacking political backing, the judge was not among the candidates given top billing media and judicial pundits before and during the shortlisting for the position.

Once he was named, the political class, notably leaders from the opposition CORD, rushed to endorse him, expressing confidence in his ability to steer the judiciary in potentially perilous times with a general election in 2017 whose outcome could, like for the one before it, end up in the Supreme Court. With the judge having been vetted by the National Assembly's Justice and Legal Affairs Committee, the whole house is expected to debate and approve or reject the report to be tabled in the House on Tuesday. Committee members and other sources reached by the Kenya Free Press were heavily guarded about the committee's report. 

However, as the final vetting gets to Parliament, a section of MPs within the ruling coalition have expressed strong opposition to the nomination. While the judge has been accepted by the TNA wing of the Jubilee coalition, who see his appointment as a means of reaching the Kisii community ahead of next year's election, the URP wing is adamant that Justice Maraga cannot be trusted.

The group determined to block Justice Maraga's appointment have picked on a ruling the judge made in the 2008 murder of former Ainamoi MP David Kimutai Too to contest his nomination. The group had orchestrated the filing of a public petition accusing Justice Maraga of tribalism and favouritism in his duties.

The claim is premised on the judge's conviction of police constable charged with the MP's death, Andrew Moeche Omenga, who like the judge is a member of the Kisii tribe, on manslaughter and not murder. Mr Omenga was charged with killing Mr Too, who had just been newly-elected, together with his companion, a policewoman, in an alleged love triangle.

In a ruling that was criticised by some at the time, Justice Maraga in convicting the accused for manslaughter rather than murder had said that he had found that both of the accused's victims were armed, a fact that led him to fear that they would shoot him if he did not shoot first.

However, the involvement of political forces in the judge's nomination has not gone unnoticed. The petition referred to above, which was already considered by the Justice Committee, was initiated by Mr Emmanuel Korir, a parliamentary aspirant, and Mr Tom Biegon, an aide of Ainamoi MP Benjamin Langat — the late Too’s younger brother and a Jubilee MP from the URP side.

Ahead of the committee's meeting with Justice Maraga came an orchestrated media campaign, using both social media and the alternative media of weekly newspapers with headlines questioning the judge's religious beliefs and speculating about whether he had indeed topped the interviews and was initially announced by the JSC.

More information has come to light this weekend, with a report in the Sunday Nation indicating that contrary to the public position by JSC that its selection had been unanimous, the commission had been sharply divided and Justice Maraga was merely a compromise candidate. According to the report, one group, associated with the political establishment, strongly supported Appellate judge Justice Alnashir Visram and, in second place, High Court judge Msagha Mbogholi. The division was so fierce that even another group favored Justice Smokin Wanjala as the new CJ forcing the team to unanimously agree on a compromise candidate and picking Maraga.

The report adds that, after the JSC agreed on Justice Maraga, a member of the commission found it fit to make the announcement, perhaps in fear that last minute changes could be made. The member, Law Society of Kenya representative Tom Ojienda, was reportedly censured by some JSC members for jumping protocol and disclosing to the media the nomination of Justice Maraga before acting Chairperson Margaret Kobia had formally broken the news.

A school of thought has also sprung up in recent weeks questioning Justice Maraga's commitment to 'progressive' causes. Accordingly, the judge's absence in the struggles for multiparty system in the 80s and 90s, when he was supposedly established as an advocate in private practice, should mark him out for the top job.

This point of view is elegantly articulated in an op-ed in the Sunday Nation by a freelance journalist by the name Charles Ouko. The irony of the whole point is that progressive ideas were never the yardstick for the nomination, judging by the treatment that Prof. Makau Mutua received in the shortlisting and interview process.

As the Nation article on the horse-trading that led to the nomination indicated, among Justice Maraga's attributes that enticed the JSC were "straight-forward and conservative personal life".

What the shenanigans about this nomination show is that the establishment has no uniform voice a section of it will do its best to block Justice Maraga's appointment.

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