Lacuna looms as Chief Justice Maraga departs

Tuesday, September 15th, 2020 09:00 |
Chief Justice and President of Supreme Court, David Maraga. Photo/PD/CHARLES MATHAI

Kenya is likely to stay without a substantive Chief Justice until mid next year as the process to appoint a new one to replace David Maraga jump-starts.

The Judicial Service Commission (JSC) now wants parliament to amend the laws to allow for a shorter period or have the Deputy Chief Justice to hold the office pending the appointment process.

“The earliest the country can have a new CJ after the retirement of the current holder is June next year that will be devoid of any hurdles before then,” Justice Mohammed Warsame who is a member of the JSC told a parliamentary committee.

Appearing before the Justice and Legal Committee of the National Assembly Maraga said he will be proceeding on terminal leave on December 12, before he formally retires a month later.

The process to replace Maraga according to the law can only kick off after January 12.  

Remain vacant

Asked whether the office will remain vacant during the period he will be on leave, Maraga said the law provides that he will still be in office during the 30 days leave.

“Who stands as the CJ in the event of the retirement of the holder of the office,?” posed Homa Bay Town MP Peter Kaluma.

“The CJ remains in office after the date he formally leaves office. I will remain the CJ during the 30 days I will be on leave,” Maraga in response to a question by Junet Mohamed (Suna East).

Committee vice-chairman Otiende Amollo (Rarieda) said that six months is too long for the country to stay without a substantive CJ.

Warsame in his presentation told the committee that the areas the commission wants to be addressed is whether the process for recruiting a new CJ may commence before the position falls vacant on January 12, 2021.

“It is generally a good practice in democratic jurisdiction that critical constitutional offices like the CJ and the Chairman of the Independent Electoral Boundaries Commission (IEBC) should not fall vacant for a period,” Warsame said.

Parliament should also address the issue of making statutory amendments to facilitate proper succession management in the judiciary.

Maraga succession

“The law is also unclear on who should gazette the occurrence of vacancy of the office the CJ since the holder of the office does not have those powers having left office on the expiry of their term of office,” Warsame noted.

The commission has already set in motion the process of recruiting the next CJ, prioritising it for funding in the 2020/21 financial year.

“To enhance service delivery in the Judiciary, the commission intends to recruit the next Chief Justice and one Supreme Court judge, 30 superior court judges (High Court, Environment and Land Court, and Employment and Labour Relations Court), 100 magistrates and 300 judicial officers and staff to address case backlog in the judiciary,” Commission secretary Ann Amandi said early this year.

The succession is billed as a high-stakes race since Deputy Chief Justice Philomena Mwilu is facing legal challenges over a petition filed at the JSC by the Director of Public Prosecution (DPP) and the Director of Criminal Investigations (DCI) asking for her removal over alleged abuse of office.

The one Supreme Court judge position to be filled is that of Justice Jackton Ojwang’, who is retiring this month upon attaining the mandatory retirement age for judges of 70 years. He has been in the Judiciary for 16 years.

During yesterday’s meeting with the committee the commission was represented by Justice Maraga, his deputy Mercy Deche, who represents the Law Society of Kenya (LSK) in the commission. DCJ Mwilu, Emily Ominde (chief magistrate), Justice Mohammed Warsame (Court of Appeal) and Justice David Majanja (High Court), Macharia Njeru (representing LSK) and Prof Olive Mugenda (the public representative).

Tentative plans

While JSC could put in place some tentative plans on how they will go about recruiting the next Chief Justice, the actual process will not start until Justice Maraga vacates office, either on attaining 70 years or if he goes for an early exit. It cannot start even when he is on terminal leave.

This provision that recruitment can only start once the office falls vacant has been criticised in the past for hampering certain key offices whose holders wield powers that no other person can have unless they are substantive office holders.

Before leaving office,  former Auditor-General Edward Ouko called on MPs to amend the necessary laws to allow the recruitment of such key State officers to start months before the incumbent’s term expires so that there will be no void in the office.

The delay in the appointment of the Auditor General, for instance,meant that listed State corporations could not publish their financial reports because they have not been audited.

Former CJ Dr Willy Mutunga retired in June 2016, which was a year before he could attain 70, because he wanted to give the country sufficient time to recruit a new Chief Justice ahead of the August 2017 election.

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