JSC meets as race to replace Maraga begins

Friday, January 15th, 2021 00:00 |
A section of JSC members during a past session. The team meets today to kick-start process of getting Maraga successor. Photo/PD/File

Just five days after the retirement of Chief Justice David Maraga, the Judicial Service Commission (JSC) meets today to kick-start the process of looking for his successor.

According to the 2010 Constitution, the position will be open to serving members of the Judiciary and those from outside.

In 2013, Willy Mutunga from civil society, emerged the winner to serve as the country’s first CJ under the then new constitutional dispensation. Maraga beat 11 other candidates to succeed Mutunga in 2016.

“The process of recruiting a CJ is long and vigorous as set out in the Constitution.

Several parameters, such as regional, gender, ethnic balance and age, have to be put into consideration by those charged with making the nominations,” says Senior Counsel Tom Ojienda, a former JSC member.

Sources intimated to the People Daily that the nine-member JSC is scheduled to meet this morning to jump-start the process to appoint Maraga’s successor.

Possible successors

The JSC comprises 11 members, but following the retirement of Justice Maraga and the elevation of Deputy Chief Justice Philomena Mwilu to act as CJ until a new one is appointed, her position as a representative of the Supreme Court remains vacant.

A source in the Judiciary confirmed that after today’s meeting, JSC will issue recruitment guidelines and procedures as well as advertise the position. Acting CJ Justice Mwilu is expected to chair today’s meeting.

 Whereas it remains unclear whether the Supreme Court will nominate a new representative to fill Mwilu’s position at the JSC, current members of the oversight body, on whose shoulders lie the responsibility to interview and nominate the next CJ, are Mwilu (Supreme Court), Justice Mohammed Warsame (Court of Appeal), David Majanja (High Court), Attorney Genera Kihara Kariuki, Emily Ominde (Magistracy); Mercy Deche and Macharia Njeru, both representing the Law Society of Kenya. 

Others are Patrick Gichohi who represents the Public Service Commission and Felix Koskei and Olive Mugenda, who represent the public. 

 Limuru Senior Principal Magistrate Evelyne Olwande, who was elected in December, is set to replace Ominde, whose term has expired.

Already several names are being floated as possible successors of Maraga, whose four-year tenure was characterised by frequents standoffs with the Executive over his claims that the latter was out to take control of the Judiciary.

Spirited fight

Potential aspirants include Mwilu, Supreme Court judges Njoki Ndung’’u, Isaac Lenaola, Mohamed Ibrahim and Smokin Wanjala. 

Others are Justice William Ouko (Court of Appeal president which is the second highest court on the land after the Supreme Court), Judiciary Training Institute director Kathurima M’Inoti and Court of Appeal judges Daniel Musinga, Martha Koome, Fatuma Sichale and Agnes Murgor.

 Others are US-based Kenyan law scholar Makau Mutua, who put up an impressive fight for the post last time and High Court judge Msagha Mbogholi-Msagha. 

More candidates, mainly scholars from outside the Judiciary, are expected to join the race.

A Judiciary insider who requested anonymity told the People Daily that three distinct camps had emerged in the effort to replace Maraga.

First, is a group revolving around the AG, alongside Njeru, Gichohi and Mugenda, which is proposing a pro-establishment CJ, a direct Maraga opposite.

Then there is a group. mainly lawyers, pushing the narrative that the next CJ be appointed from the Bar.

However, they face direct opposition from  some forces which maintain that Maraga’s successor must be an established serving judge.

The People Daily established that the Director of Criminal Investigations and Director of Public Prosecutions are expected to put up a spirited fight to ensure that Mwilu does not clinch the seat because she faces criminal charges in court with the gender card likely to come into play. 

“Claims that the AG is keen on the post are far-fetched.  He is not interested on account of his age,” said a Judiciary source.

“Judge Ibrahim is qualified for the seat but might recuse himself on health grounds. 

His colleague Lenaola is still young. He has nearly 20 more years at the Supreme Court and will have opportunities to apply for the post in future,” added the source.

Lobbying and intrigues

All eyes will now be on the JSC, with expectations that it would rise up against all political, tribal and legal intrigues to come up with a candidate capable of steering the ship in the right direction.

Already, LSK President Nelson Havi has fired a warning shot that lawyers would not accept anybody who is short of fitting in Maraga’s shoes.

“We know the stakes are very high, and lobbying and intrigues have begun, but we are watching everything keenly,” Havi said.

Coming barely a year before the next General Election and months before the anticipated national referendum on the Building Bridges Initiative, the process to choose Maraga’s successor is likely to be more volatile than ever before.

While majority in the Judiciary and the legal fraternity are said to be keen on having a man or woman who will defend the independence of the institution to the bitter end, the Executive is reportedly strategising on how to influence the nomination of a candidate who can work with them.

Given the role that the next CJ is likely to play in the coming days, allies of President Uhuru Kenyatta and his deputy William Ruto are said to be working on strategies to influence the outcome of the process.

Sources indicated that both sides of the political divide are keen to pull out all the stops to have a friendly CJ.

“Of course, politics will be at play, starting from JSC to Parliament and the presidency,” Rarieda MP Otiende Amollo, who is the vice-chairperson of the Justice and Legal Affairs Committee that will vet the new CJ.

Divisions in the commission exploded late last year, when Njeru accused Maraga of frustrating efforts to replace him and a scheme by some forces to influence the process.

“The commissioners will not allow any manner of influence whether external or internal. It is clear that a few elements in the Judiciary are attempting to control the process.

It will not be surprising for litigation to be sponsored with injunctions sought against the commission to derail the recruitment process,” Njeru told journalists in October.

Observers say the appointment of a CJ has always been a politico-legal process.

Other than regional, tribal, age and gender considerations, the composition of JSC itself is also likely to be a major factor.

Kihara, Gichohi, Koskei, Mugenda and Njeru are seen to be pulling strings for the Executive with Mwilu, Warsame, Majanja, Deche, Olwande likely to move in a different direction.

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