Chief Justice David Maraga has given a harsh verdict on how the country is being governed in a stinging address to an international audience in the United Kingdom.
Maraga accused the political elite, in the Executive and Parliament, for “cherry-picking” provisions of the Constitution, only implementing those that safeguard their personal or sectarian interests.
Citing failure to tackle corruption and impunity, vote rigging and dithering in passing laws to help more women get into power, the CJ queried whether the new legal regime has worked for Kenyans despite the same being praised as one of the most progressive and transformative constitutions in the continent.
The CJ said the country’s biggest problem is the politicians, tenderprenuers and bad behaviour that has taken root overtime.
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“Left on their own the legislative and executive arms of government, comprising mainly politicians and social elites, will implement the Constitution in an arbitrary manner, cherry-picking the easier and non-contentious provisions, always safeguarding their personal or sectarian interests. That is exactly what they have done in Kenya,” said Maraga.
Justice Maraga spoke at the Oxford Union Conference in the UK dubbed: ‘The quest for constitutionalism in Africa: a reflection on the interface between institutions, leadership and faith.’
He says the law in Kenya, just as is the case in the rest of Africa, is skewed to benefit business dynasties and tenderprenuers who influence presidential elections.
Maraga pointed out that unlike Europe where constitutionalism is tied to economic growth, in Kenya and Africa, the law is customised to suit certain interests.
He said there is little hope on redeeming the county as Parliament and the Executive continue cherry picking in the implementation of the Constitution.
“Three examples will suffice — failure to implement the gender equality principle under the Kenyan Constitution, failure to fight corruption and impunity and failure to hold credible elections,” said Maraga.
A case in which Parliament is challenging a High Court order that it should be dissolved for failing to implement the Two-thirds Gender Rule is currently before Maraga.
“Although the Constitution provides for gender equality in elective posts, 10 years down the line, the august House is yet to give effect to the two-thirds rule,” he said.
The CJ said Kenyan women have fared poorly in elections yet politicians are still unwilling to give them a chance in leadership.
The cause of the ping pong game by Parliament is the patriarchal nature of the society, says the CJ.
He added: “The gender rule has not been enacted because such legislation will disrupt patriarchal interests of the political elite.”
Maraga said while Kenya is a religious nation, her moral fabric is rotten. “That explains why the country is still reeling from corruption when majority of citizens are either Christians, Muslims and Hindus.”
“Plundering pubic resources by the few elites in Kenya is the order of the day yet most Kenyans are living below the poverty line.”
Maraga added: “Although 80 per cent of the Kenyans are Christians, with a fair percentage professing Muslim, Hindu and other faiths, over one third of the national budget is lost to corruption every year.”
The CJ also said he still stands with the majority Supreme Court’s decision annulling the August 2017 Presidential election.
Maraga said no one should expect ‘animal farm’ kind of treatment before him.
“I’m a Seventh Day Adventist Christian and the bedrock of the doctrines of SDA, as is the case with other churches and faiths, is integrity in whatever one does. Though I am a weak and sinful human being, as everybody else is, I will always stand with my decisions, including the Supreme Court decision of September 2017 on the Presidential Election Petition,” said Maraga.
Maraga’s predecessor Willy Mutunga was also a fierce critic of the political elite. In an interview with Dutch newspaper, NRC Handelsblad, in January 2016, Dr Mutunga said Kenya had become a bandit economy run by ruthless cartels.
He said corruption stretches from the very bottom to the very top of society.
“The influence of cartels is overwhelming. They are doing illegal business with politicians. If we do not fight the cartels, we become their slaves. But leaders who take on the cartels must be prepared to be killed or exiled,” said Mutunga.
“Yes, I am now at the top. I’m riding a tiger, hoping that the monster will not devour me. But as long as I fight the cartels and they are protected, you cannot achieve anything. You are taking these people into a corrupt investigating system, through a corrupt anti-corruption system, and a corrupt Judiciary.”
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