Mwilu in the eye of Judiciary storm over Chief Justice role

Tuesday, December 15th, 2020 00:00 |
Deputy Chief Justice Philomena Mwilu

Bernice Mbugua @BerniceMuhindi

Outgoing Chief Justice (CJ) David Kenani Maraga has left his deputy Philomena Mwilu in the eye of a storm after he unilaterally appointed her to succeed him albeit in acting capacity.

All eyes are now on Mwilu, barely three days after she assumed Maraga’s role, with lawyers sharply divided over whether she had the legal mandate to perform all duties of the country’s Chief Justice and President of the Supreme Court.

Already, two cases have been filed in court challenging Mwilu’s position as acting Chief Justice and whether she should take over all the roles of that office.

Maraga started his terminal leave on Friday, and will return to the Judiciary on January 11 to officially hand over to his deputy (Mwilu) who will take charge until a new CJ is appointed.

A day before starting his leave, Maraga wrote to Mwilu stating that he had transferred all his powers to her until a substantive CJ is appointed and cited articles 161 and 163 of the Constitution in his directive.

“I hereby authorise you, Philomena Mbete Mwilu, the Deputy Chief Justice of the Republic of Kenya, to act as Chief Justice of the Republic and perform all duties and functions of CJ from December 12, 2020, until my retirement on January 12, 2021,” the letter. 

“I shall return on January 11, 2021, to formally hand over to you to continue acting as Chief Justice of the Republic of Kenya for a period not exceeding six months or until a new Chief Justice is appointed in accordance with the Constitution.”

However, lawyers opposed to Mwilu’s appointment as acting CJ claim she is unsuitable for the office because of some pending cases before the Judicial Service Commission (JSC) against her.

One of the petitions was filed by the Director of Public Prosecutions (DPP) Noordin Haji and Directorate of Criminal Investigations (DCI) George Kinoti, accusing her of corruption and abuse of office.

Haji and Kinoti claim Mwilu is unfit to hold public office as she was involved in irregular sale and acquisition of property, including obtaining execution of a security by false pretence.

Mwilu denies the charges and the petition is pending before JSC.

In another petition, Kinoti and Haji want her removed from office for failing to pay taxes to the Kenya Revenue Authority (KRA), forgery and uttering a false document.

Three other petitions, Alexander Mugane (filed June, 2019), Peter Kirika (June, 2019) and Mogire Mogaka (October, 2018) are also pending.

Yesterday, a senior judge told People Daily that Maraga’s move to appoint Mwilu had caused confusion and uncertainty in the Judiciary since she may be required to appoint judges to hear some of the pending cases against her.

Another Senior Counsel blamed the development on some powerful forces allegedly trying to hijack the Supreme Court for purposes of controlling the 2022 General Election.

He accused Maraga of complicity in the Judiciary fights, saying the CJ had taken sides in the wars.

“There is a clique that pretends to be fighting for independence of the Judiciary yet it is motivated by 2022 succession politics. The group comprises senior lawyers, judges and politicians. This is going to be a fierce war that we don’t know when and how it will end,” said the Senior Counsel.

Reacting to Maraga’s move to vest his powers on Mwilu, Senior Counsel Ahmednassir Abdullahi said: “This is blatant and audacious act of successful treason.”

Last week, activist Okiya Omtatah filed a case, seeking orders to prohibit JSC from appointing Mwilu to act in the office of the Chief Justice. Omtatah wants Mwilu restrained from taking over until JSC clears her of all allegations of corruption and abuse of office contained in the four petitions seeking her removal from office pending hearing and determination.

Yesterday, Omtatah filed another case seeking to suspend Maraga’s letter, which transferred all his functions to Mwilu.

As the Judiciary’s second in command, Mwilu is the frontrunner in the race and if she succeeds to become CJ, it means there will be a vacancy in the position of the DCJ and the JSC will recruit a man to fill it.

JSC’s functions include recommending individuals to the President for appointment as judges and review and recommend the conditions of service of judges and judicial officers, other than their remuneration and staff of the Judiciary.

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The commission also appoints, receives complaints against, investigates and removes from office or otherwise, disciplines registrars, magistrates, other judicial officers and other staff of the Judiciary.

The Supreme Court, which the CJ heads, is key in determining presidential petitions. In the 2017 elections, the court nullified the election of President Uhuru Kenyatta that  led to a repeat poll.

In his second case yesterday, Omtatah argues that designating the DCJ as the Acting Chief Justice is unconstitutional given that it allows the DCJ to exercise full powers of the CJ yet the appointment was done through a process which is not constitutionally permissible.

“The letter is unconstitutional for creating the position of Acting Chief Justice – a position not contemplated by the Constitution…The outgoing Chief Justice has no mandate or capacity to appoint an Acting Chief Justice,” he says in court documents.

According to Omtatah, there is no constitutional requirement that the outgoing Chief Justice should recommend a person for appointment as Acting Chief Justice.

“It is the Judicial Service Commission which recommends a person to the President for appointment as Chief Justice… The Constitution is clear on how the Chief Justice is appointed and there cannot possibly be any other way, including by the impugned letter,” he argues.

Omtatah says the position of Acting Chief Justice is unconstitutional because only one person is recognised by the Constitution as Chief Justice.

“Even the DCJ acts under the direction of the Chief Justice. There cannot be an Acting Chief Justice because the Constitution only recognises the Chief Justice appointed in accordance with Article 166(1)(a),” he argues.

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