The people shall

This is my view, and no one else's: a constitution is a piece of paper until enough citizens take the necessary steps to respect, protect and uphold the constitution. In Kenya, the mistake that many learned friends have made is to assume that the constitution will only be "implemented" after the state, state officers, state agents and state organs respect, protect and uphold the constitution. They are, respectfully, wrong.

There is a lot that the state can do to celebrate the highest principles of the constitution, but the state will not do any of those things unless the people make it. Kenya's Second Republic was promulgated in 2010 and one very day thereafter, there are many courageous Kenyans who took it upon themselves to live according to the edict in Article 3, Clause (1) of the Constitution of Kenya. One of the seminal moments in this battle was the decisive (after a fashion) defeat of the BBI process that sought to ameliorate the suffering of the political classes while trampling on the wishes and desires of the peoples of this fair land.

I say "ameliorate" because a careful examination of the proposals that received the greatest support of the political classes was the expansion of the unelected offices that politicians would be entitled to after a general election. These unelected positions, ostensibly to ensure that "no part of Kenya is left out of Government" were intended to establish a post-election coalition in all but name between the majority party, the minority party and the unhappy losers in presidential and gubernatorial elections so that they would not foment opposition to the government of the day.

Household economic questions were given short shrift; the cost of living is the highest it has ever been, never mind the posh-sounding pablums by the Council of Economic Advisors. Mr. Miguna Miguna's proposal to slash the take-home salaries of elected state officers did not even receive the courtesy of a response. The proposal by Mr. Ekuru Aukot to create a more equitable parliament, fifty/fifty between men and women and fewer in number (aka Punguza Mizigo Bill), was rejected out of hand. Mr. Okiya Omtatah's campaign to audit the public debt has been opposed at every turn by successive governments. In short, the people's needs were not on the table; the needs of fat-cat politicians, used to the truffles of the state, took centre stage.

It is only when enough citizens impose their will on the state that the constitution will be implemented in full. It will not be implemented only if the only thing you have in your hand is a court order. Take the BBI fiasco as a guide: while it was defeated in the law courts, the current parliament has taken upon itself to revive the process on its own motion, with a few parliament-specific goals in tow. This time round, despite several judgments of the superior court, parliament is plowing full-steam ahead with parliamentarians' desire to "entrench CDF in the constitution". Mealy-mouthed explanations about the "benefits of CDF" fly in the express findings of the superior courts: Kenya does not need wasteful public funds purporting to implement programmes of national and county governments.

It has been twelve months since the government faced the brunt of the anger of young Kenyans and the president "withdrew" the Finance Bill 2024 after it had been enacted by parliament. What Kenyans did on that terrible day last year was to espouse the highest principles of the constitution to respect, protect and uphold the constitution. They were back on the streets of many cities and towns of Kenya on the one year anniversary. Their resolve does not appear to have waned despite a year of propaganda and search engine optimisation by propagandists of the state. Constitutions are not self-executing instruments; they require the blood, sweat and toil of the people to make any kind of sense. Kenyans demonstrate this truism with a resolve that should terrify the men and women who have chosen to suborn and pervert the constitutional order.

Judge Maraga's other choice

Chief Justice Maraga (Emeritus) gave an interview on the 18th June, 2025, where he announced that he intended to stand in the net presidential election. The interview covered a broad range of current political questions, and the announcement was treated with little enthusiasm by the interviewer, Mr. Joe Ageyo. It is a sign of the seriousness, or lack thereof, that Judge Maraga's presidential ambitions is treated.

A very, very small straw poll among my online horde (which is not dispositive of anything) supports the idea that Judge Maraga is in the wrong campaign. He beat out a relatively strong field to be appointed as Kenya's second Chief Justice under the 2010 Constitution. As head of the Judiciary, he tried his best to advance the administration of justice by expanding the real estate development of the Judiciary and keeping out of political contests. That is until his Supreme Court nullified the 2017 presidential election which he followed up by calling for the dissolution of Parliament for failing to meet the Tw-thirds Gender Rule. Anyway, I digress.

Judge Maraga was a good judge and a good Chief Justice, never mind what the likes of Senior Counsel Ahmednasir Abdullahi say about him. During the height of the Covid-19 Pandemic, he ensured that the courts continued to function efficiently and even after Uhuru Kenyatta and his henchmen "revisited" the Judiciary by slashing the Judiciary budget so viciously it is a wonder it continued to function in the dying days of Uhuru's presidency. Even his leadership of the Judicial Service Commission did not elicit the kind of carping that accompanies those sorts of high offices. Nevertheless, I am slowly succumbing to the argument that despite his many qualities and qualifications, he is not well-suited to be elected Kenya's sixth president.

Lawyers, especially Kenyan lawyers who have had long legal careers like Judge Maraga, generally, make for bad politicians. A perusal of the parliamentary Hansard on the performance of lawyers in both the National Assembly and Senate reveal that they are champion debaters, but they are too easily enamoured of legalism to make proper political choices that will benefit not just their constituents but the Republic as well. If you look at the decision by the lawyers sitting in the National Assembly to defy the Supreme Court regarding the Constituencies Development Fund, you will see what I am talking about. These people, in my estimation, should not be trusted to hold elected office, certainly not the presidency.

In Judge Maraga's case, if he truly wishes to serve, there is one place where his particular strength of character will be of immense value: the State Law Office. Kenya is ripe for an Attorney-General who is not afraid to do the right thing, liwe liwalo, and Judge Maraga has demonstrated the ability to cut through the political faff and present the legal case over matters of national importance. Of course he will need to brush up on his political and interpersonal skills, but what he currently possesses is well-suited to being Mwanasheria Mkuu and Mkuu wa Sheria all rolled into one.

This is true of the other lawyers cosplaying at politics. Their particular skills are well suited to sitting on the Bench or representing the State at the State Law Office or the Office of the Director of Public Prosecutions. Indeed, if we are to amend the current statutory framework, I would recommend amending all the laws that provide that the chairman of a constitutional commission should have the qualifications of a judge. If you are not appointing a Judge or magistrate, that qualification only serves to entrench lawyering into administrative frameworks for which lawyering is a liability, not an asset. And yes, that includes the Kenya National Commission on Human Rights, Commission on Administrative Justice, National gender and Equality Commission and Judicial Service Commission (which should never, ever have been headed by the CJ to begin with).

If Judge Maraga wishes to serve the people of Kenya once more in a consequential way, he should eschew the presidency and instead hitch his wagon to a presidential candidate who has the necessary probity he wishes to bring to the table and serve in that government as the principal legal advisor to the Government. In that position, he would have the opportunity to sweep away the legacies of odious monsters like Charles Njonjo and instead, revivify among the State Counsels a sense of duty and honour that seems to be waning these days.

Will the real Judge Maraga please stand up

Some of the men (and women) whom we think are incorrigibly stupid only appear to be so because of the facade they put on. Anyone who can persuade a constituency to re-elect him, election after election, can hardly be described as stupid, even as he (or she) does a whole bunch of things that make no damn sense. What we must ask is this: how come so many bad men (and women) keep getting elected while the paragons of virtue who we have placed on pedestals keep falling by the electoral wayside?

The answer, I believe, lies in the ability of the so-called bad candidates to organise politics organisations dedicated to their election/re-election and the inability of their novice would-be challengers to do the same. There is the much larger population of such truly unpleasant men (and women) who will never get elected, even if they did the hard work of establishing political machines in support of their electoral ambitions.

It is damnedly difficult to set up an election ground game in Kenya at the best of times. It is twice as difficult if you want to set one up without an existing (and successful) political party to offer any form support. While Kenya has a massive number of registered political parties, few of them have successfully sent a candidate to Parliament or a county assembly, and those that fail to build up on electoral successes tend to flat out at the next general election. Be that as it may, a well-organised and well-run political party is essential to electoral success.

I say all this to speculate at the chances of Chief Justice emeritus David Maraga. Judge Maraga appears to have cast his die in presidential electoral politics and is traversing the country and appearing at political events to sell himself as a candidate at tech next general election. Those who support his campaign point to his integrity (which is considerably high). So far, he has not given any reason to consider that he is not fit to be president of this republic. Except one.

He does not appear to be a member of a political party and no political party appears to have hitched its wagons to his prospective candidacy. While he appears to be surrounded by a team of committed supporters, that is all it seems: in the absence of a political structure of any sort, I am let to wonder whether the men and women singing his praises wherever he goes, who shout the loudest about his credentials, and who bristle at any doubt against their candidate, are the parasites that afflict all political candidates and suck out the lifeblood of a political campaign.

Judge Maraga, at this stage in the proceedings, should have completed the arduous task of establishing and registering a political party (especially if he was never joining an existing political outfit). He should have began to identify candidates for the 1,350 elected county assembly seats, a slate of special interest seat nominees (women, youth, PWDs), candidates for the 290 elected national assembly seats, 47 woman representative seats, 47 elected senate seats, and the slates of special interest seats in both chambers of Parliament. And collectively, they should have started recruitment of members of their political party and, crucially, fundraising from these members to sustain their campaign. He does not appear to have done any of these things. How does he expect to be elected?

"Integrity" is not a political philosophy or ideology. What, beyond, "anti-corruption", is his politics made up of? How much of the public purse is he going to dedicate to the brick-and-mortar "development" or roads and affordable houses and how much of it is going to dedicate to paying a real wage to the perennially neglected healthcare workers and basic education teachers? Will he expand the size of the presidential fleet with diesel-guzzling armoured SUVs and German limousines or will he, finally, abolish VIP transport for the entire national and county executive and, instead, invest that wasteful expenditure in public safety? These, and dozens upon dozens of ideological questions remain unanswered and undermine his presidential campaign before it has even official began.

If Judge Maraga wants to be President and Commander-in-Chief of the Kenya Defence Forces, he cannot afford to confine his political campaign to visiting courtrooms where "activists" are being prosecuted or "GenZ" rallies where the most important feature of the rallies is his presence. If he doesn't build a political movement, consisting of a political party, electoral candidates, a political ideology, and a campaign finance fund-raising team, he will be remembered (if at all) for being just one more dilettante who showed so much promise and flamed out so pitiably.