List of 13 candidates seeking to succeed Maraga

Thursday, February 11th, 2021 10:00 |
Acting Chief Justice who is also the deputy Chief Justice, Philomena Mwilu together with the immediate former CJ David Maraga address the press. Photo/PD/FILE

Big names in the legal fraternity gave the vacant post of Justice Chief a wide berth in a list of candidates released by the Judicial Service Commission (JSC) yesterday.

Some of the prominent personalities such acting CJ Philomena Mwilu and law scholar Makau Mutua who had been expected to apply for the position left vacant by David Maraga did not submit applications.

Former Director of Public Prosecutions Philip Murgor and Senior Counsel Fred Ngatia are among 13 lawyers who submitted applications. Other candidates include University of Nairobi law scholar Prof Patricia Kameri Mbote, Appeal Court judges William Ouko and Martha Koome, and High Court judges K. Njagi Marete, Said Juma Chitembwe and Mathew N. Nduma.

Also on the list are a former commissioner with the Constitution of Kenya Review Commission (CKRC), Alice Jepkoech Yano, Prof Otinga Mare, sports medical doctor Dr Moni Wekesa, lawyers Otondi Ontweka and Ombongi Brian Matagaro.

Nine other persons, among them Ouko, Yano, Koome, Nduma, Marete and Chitembwe have applied to fill the position left vacant by Justice JB Ojwang’ at the Supreme Court.

Also falling in this group are Court of Appeal judge and former chairman of the Kenya Law Reform Commission Kathurima M’Inoti and lawyer Justry P. Lumumba Nyaberi.

Notably, no Judge of the Supreme Court applied for the CJ position. 

Disclosing the names yesterday, JSC Secretary Anne Amadi said they would uphold professionalism and integrity throughout the nomination process.

“The Commission will proceed to shortlist and publicise the list within 14 days as provided in the First Schedule of the Judicial Service Act,” said Amadi, who doubles up as the Judiciary Registrar.

Applications closed 

The deadline for interested persons to submit their applications closed on Tuesday evening, setting in motion the process to identify the person to succeed Maraga who retired last month.

Interviews for the selection of Maraga’s successor are scheduled to be conducted concurrently with those for the vacant slot in the Supreme Court following the retirement of Justice Ojwang’ early last year.

The decision by Justice Mwilu not to apply for the position essentially means she will remain in her current position as deputy CJ, thereby diminishing chances for female applicants for the position of Chief Justice and President of the Supreme Court. The Constitution stipulates that the positions of CJ and deputy are held by persons of opposite gender.

And with Mwilu coming from Eastern Kenya region, the doors also appear to be slammed on candidates from the counties of Embu, Meru, Machakos, Kitui and Makueni.

The process to nominate a CJ is traditionally determined by various factors, among them gender and regional balance, track record in jurisprudence, integrity and probity and political considerations to some extent.

Since JSC declared the position vacant following Maraga’s retirement on January 12, intense lobbying has reportedly been going on within the corridors of the Judiciary and the legal fraternity in general.

Whereas the Executive is reportedly said to be pushing for a conservative and friendlier CJ, the Judiciary and civil society are fronting for an independent lawyer who would take on the government in defence of the independence of the Judiciary.

Among the applicants, Ngatia is best known as President Kenyatta’s lead counsel in the 2017 election petition at the Supreme Court while Justice Ouko is the President of the Court of Appeal and once served as Registrar of the Judiciary.

Judge Chitambwe is best known for his decision to free a man convicted for defiling a minor, which attracted international spotlight, with his ruling being judged the worst in the world for the year 2017.

He ruled that the child appeared willing to have sex with the defendant.

A respected scholar, Prof Mbote, the University of Nairobi School of Law dean is a mentor and teacher of a vast majority of lawyers including judges of top courts.

Murgor, who served as DPP during the Mwai Kibaki regime, is the husband of Judge Agnes Murgor, a judge of the Court of Appeal.

The next CJ is expected to play a key role in the determination of the consolidated 11 Building Bridges Initiative (BBI) cases, the referendum process, the 2022 General Election and the swearing-in of President Uhuru Kenyatta’s successor.

Maraga, whose tenure was characterised by frequent run-ins with the Executive, reached the climax of his tenure when he led other Supreme Court judges to nullify President Kenyatta’s election in 2017.

The controversial move seems to have set the Judiciary on a collision course with the Executive.

Consequently, President Kenyatta promised to “revisit” the issue, a declaration that was often cited in the troubled relationship between the two arms of government during Maraga’s tenure.

And in his parting shot through his retirement speech, Maraga challenged judges to stand firm and not let the political class plunge the country into chaos.

“You live in this country and you have seen the drums of political war beaten already.

If you waver and do the wrong thing and this country descends into chaos, God will never forgive you,” Maraga told the judges.

In 2020, Maraga rubbed top leaders and politicians the wrong way when he condemned what he called persistent interference with the independence of the Judiciary.

He handed over the mantle to his deputy Mwilu in an acting capacity, amid protests by some players.

Her short stint in acting capacity has not been without the intrigues that have faced her tenure as the Deputy Chief Justice.

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