Parliament begins process to ensure CJ is recruited before vacuum occurs

Tuesday, December 22nd, 2020 00:00 | By
Muturi Kigano.

Parliament has kicked off a process that will see a Chief Justice (CJ) recruited six months before the incumbent leaves office.

The move according to MPs is meant to ensure smooth transfer of power in the office of the CJ and stability in the judiciary.

The Bill proposes amendment to the Judicial Service Act  to be tabled at the National Assembly today,  seeks to insert a provision empowering the Judicial Service Commission (JSC), to commence the process of recruiting a new CJ earlier than required  under Article 167 of the Constitution.

The Bill is sponsored by Muturi Kigano - who is the Departmental Committee on Justice and Legal Affairs chairperson is scheduled for First Reading this afternoon.

“The principal purpose of the Bill is to amend Section 30 of the Judicial Service Act, No.1 of 2011 in order to insert a provision empowering the JSC to commence the process of recruitment of a new CJ at least six months before the expected retirement date or expiry of the term of the CJ under Article 167 of the Constitution,” says the Bill.

The Bill was among those singled out for fast-tracking following a State House meeting between President Uhuru Kenyatta and the leadership of the National Assembly and the Senate last month.

Law is silent

Maraga who leaves office in January 12, has handed over the office to his deputy Philomena Mwilu; a move which has sparked a lot of debate.

Activist Okiya Omtatah immediately after Maraga’s action, moved to court challenging the move on grounds that it was unconstitutional.

He argiues the law does not provide for the deputy CJ to act during the recruitment process.

Omtatah in the case filed at the High Court argues that the law is silent on who should act if a sitting CJ’s term ends.

Section 5 (4) of the Judicial Service Act, provides that in the event of the removal, resignation or death of the CJ, the deputy CJ shall act as the CJ for a period not exceeding six months, pending the appointment of a new holder in accordance with the Constitution.

“In Maraga’s case he did not leave office due to the above reasons but because his term expired. The law is silent and the deputy should not automatically assume office,” he argues.

Speaking to the People Daily, Homa Bay Town MP and member of the Kigano-led committee Opondo Kaluma, said the Bill might not affect the outgoing CJ because of the long process involved in its enactment. 

The MP indicated that it may be withdrawn because similar proposals had been contained in the Building Bridges Initiative Bill.

“Maraga is basically gone. The proposal in the BBI bill is better because it entrenches the six-month period requirement in the Constitution. I think the committee will prefer the BBI route,” said Kaluma.

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