Former Kenyan Chief Justice Says Independent Judiciary is Crucial to Maintaining Constitutional Democracy
— David K. Maraga, who once led Kenya’s highest court and is now a candidate in the country’s 2027 presidential election, told an audience at the University of Houston Law Center that his best-known ruling illustrates a larger challenge facing constitutional democracies. As former chief justice of Kenya’s Supreme Court Maraga presided over the court majority that annulled Kenya’s 2017 presidential election and ordered a new vote. The decision, he said, raised fundamental questions about what happens when those who hold the levers of power challenge a nation’s constitution and the rule of law.
“People called that moment a triumph,” he said of the ruling. “I’ve never been able to see it that way. We did not announce the decision because we had counted the ballots and found a different winner. Courts do not count votes.” Instead, judges ruled the election invalid because the electoral commission could not demonstrate how it had reached the announced results, as required by the Kenyan constitution.
Maraga, who retired from the Supreme Court in 2021 upon reaching the constitutionally mandated retirement age of 70, spoke to students, faculty, alumni and others as part of the Distinguished Global Leaders Series sponsored by the UHLC Global and Graduate Programs. Students from Daystar University in Kenya joined the presentation online.
Karen Jones, executive director of UHLC’s Global and Graduate Programs, said Maraga’s career “invites us…to consider the meaning of judicial independence and what it takes to uphold the rule of law when doing so has real consequences. What does judicial independence really mean? What does the rule of law require when the institutions of government themselves are being tested? What does it mean to say a constitution binds not only ordinary citizens but those who exercise the greatest power?”
Maraga praised Kenya’s constitution as good and strong bill of rights but said neither guarantees fair elections. “I respect honest officials, but I’m unwilling to build a country that works only when we get honest data.”
As the country was rocked with youth demonstrations and tribalism, he decided to run for president. “Given an opportunity, I’ll strengthen the constitutional independence of institutions,” Maraga said. “Kenya is a great country. The problem we have is governance, and if that is corrected, it can be one of the great countries on the continent.”
But for now, he said, corruption remains a key issue. “Corruption is not only the envelope under the table, but the (rules being) written so that only one friend can win it. And the judiciary can be destroyed without anyone laying a finger on it. Judicial independence is not a privilege of the judges. It is a public good.”
Maraga experienced efforts to damage the judiciary first-hand when the judiciary budget was cut following the 2017 decision, cuts that weren’t sanctioned by the nation’s parliament, as required by the constitution. “The judgment remained, but the institution that produced it was made smaller.”
But much of the damage comes in subtler ways, he said. “You will be asked to do something slightly wrong, for an excellent reason, by someone you like,” he said. “That is how it always comes.”
For now, Maraga said, he is looking ahead to the August 2027 presidential election despite concerns about its integrity.
If he loses, he said, “I will be the first one to admit defeat. But we can’t give up, because giving up is giving up on your country.”
