A president can be prosecuted after leaving office, former CJ Maraga says

Former Chief Justice David Maraga has explained that under Kenyan law, a sitting president can be prosecuted after leaving office, not when in power.

This is amid criticism against President William Ruto’s government over rights abuses, police brutality, extrajudicial killings, and what some have described as illegal alliances with militia gangs.

Ruto's regime has also been criticized for repeatedly ignoring court directives, such as the recent appointment of IEBC commissioners despite a court-issued conservatory order, as well as hiring CASs despite the court declaring the positions unconstitutional in 2022.

“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,” the former CJ explained in a Wednesday interview with Spice FM.

Martha Karua, Kalonzo Musyoka, Rigathi Gachagua, Justin Muturi, Eugene Wamalwa, Mukhisa Kituyi, and Saitoti Torome cite the government’s response to street protesters, and also link Ruto to illegal arms transfers and alleged enabling of atrocities both in Kenya and the Sudan.

Maraga, who has declared interest in the 2027 presidential race, decried what he termed as Kenya’s fall into lawlessness and disregard for the rule of law, which he warned risks driving the country into anarchy.

“We want to take the country back to constitutionalism, so that the Constitution and the law are obeyed by everyone, starting from the top. It sends a message to everyone that the law has to be obeyed,” he said.

Maraga, then the Supreme Court president, made history by overturning the 2017 presidential election results won by Uhuru Kenyatta, leading a four-judge majority ruling that IEBC had committed “irregularities and illegalities” that undermined the election’s credibility.

It was the first time an African court annulled a presidential election and would spark friction between the Judiciary and the Executive after Kenyatta later won the repeat polls.

Last week, the former CJ joined youth-led protests against police brutality and extrajudicial killings, which saw him tear-gassed and his security detail subsequently withdrawn.

Maraga on Wednesday told Spice FM the police detail had been partially restored after earlier instructions to report to their base and not to his home.

“They started by withdrawing my driver and bodyguards. So far, my driver has been reinstated, but one bodyguard is yet to come back,” the former CJ, who has accused the state of intimidation, said.

“They also took away the security officer at my gate, but that was restored yesterday.”