Ex-Chief Justice Maraga Says President Can Be Prosecuted After Leaving Office

What does Kenyan law say about prosecuting a sitting president?
Former Chief Justice David Maraga has made it clear that while a sitting president in Kenya cannot be taken to court, they are not immune to prosecution after their term ends. Speaking in an interview with Spice FM on Wednesday, Maraga stated, “You can’t take a sitting president to court. But if he disobeys the law, flouts anybody’s rights, as soon as he leaves office, he can be taken to court.”

This comes amid growing criticism of President William Ruto’s administration, accused of human rights abuses, police brutality, extrajudicial killings, and what some political figures describe as unconstitutional state alliances with militia groups.

Several court rulings have been ignored by the administration, including the controversial appointment of IEBC commissioners despite a conservatory court order and the reintroduction of Chief Administrative Secretaries (CASs), a position previously declared unconstitutional in 2022.

Are legal actions being considered against President Ruto?
Opposition leaders have responded by announcing plans to present evidence to the International Criminal Court (ICC) in The Hague. Politicians, including Martha Karua, Kalonzo Musyoka, Eugene Wamalwa, Mukhisa Kituyi, Rigathi Gachagua, Justin Muturi, and Saitoti Torom,e are calling for Ruto’s prosecution, citing state-sponsored violence during protests, illegal arms dealings, and alleged complicity in atrocities in Kenya and Sudan.

Maraga, who has declared his intent to run in the 2027 presidential election, expressed alarm over what he described as Kenya’s descent into lawlessness. “We want to take the country back to constitutionalism, so that the Constitution and the law are obeyed by everyone, starting from the top,” he emphasized. “It sends a message to everyone that the law has to be obeyed.”

What role has Maraga played in Kenya’s legal history and current protests?
David Maraga is widely remembered for his landmark decision in 2017 when, as President of the Supreme Court, he led a majority ruling to nullify the presidential election won by then-President Uhuru Kenyatta. The court found that the IEBC had committed “irregularities and illegalities,” making it the first time in Africa that a court annulled a presidential vote, leading to notable tensions between the judiciary and the executive.

Recently, Maraga has taken a visible stance in youth-led protests against police brutality and extrajudicial killings. Last week, he was tear-gassed while participating in demonstrations. Following the protests, his state-provided security detail was reportedly withdrawn.

“They started by withdrawing my driver and bodyguards. So far, my driver has been reinstated, but one bodyguard is yet to come back,” Maraga told Spice FM. “They also took away the security officer at my gate, but that was restored yesterday.”

Maraga has since accused the state of intimidation, but says he remains committed to promoting accountability and restoring the rule of law.

By Yockshard Enyendi