Why picking successor to Maraga is an intricate case

Friday, February 12th, 2021 00:00 | By
Retired Chief Justice David Maraga waves as he leaves Supreme Court. Photo/PD/File

The decision by all the five Supreme Court judges and leading names in the legal fraternity not to apply for the vacant position of Chief Justice has ignited debate over the intrigues involved in the appointment of the country’s highest ranking Judiciary official.

Supreme Court judges Philomena Mwilu (acting CJ and President of the Court), Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and Mohamed Ibrahim gave the post a wide berth as the Judicial Service Commission (JSC) released the list of 13 people who sent in applications to succeed retired Chief Justice David Maraga.

Mwilu has been acting as CJ since Maraga’s retirement early last month.

Also missing out on the list are leading law scholars such as former Attorney General Prof Githu Muigai and US-based Kenyan law lecturer Prof Makau Mutua, as well as a host of qualifying Court of Appeal judges, save for two.

Appellate judges who sent in their applications are Court of Appeal President justice William Ouko and appellate judge, Lady Justice Martha Koome. 

The release of the 13 names and nine others for the vacant position in the Supreme Court has opened doors for high-level lobbying for the coveted seats.

Yesterday, Mutua claimed the office of Chief Justice had been captured by some external forces that he did not name.

“I have been asked why I did not apply for the position of Chief Justice. After much reflection, I concluded that as the experience of the last two recent CJs strongly demonstrates , it is not possible to be both an independent and effective CJ in Kenya,” Prof Makau said in a tweet.

On Wednesday, moments after JSC had released the list of the applicants, suspended Law Society of Kenya (LSK) President Nelson Havi tweeted, indicating that Nairobi lawyer Fred Ngatia could be the front runner for CJ while Ouko was slated to clinch the Supreme Court position.

Vacant offices

“Mr Justice Fred Ngatia, SC, Chief Justice, and Mr Justice William Ouko, Judge of the Supreme Court will not be an unexpected recommendation by  JSC in view of those who have offered to serve in the two vacant offices,” Havi tweeted.

Other than Ngatia, Ouko and Koome, the rest of the applicants include former Director of Public Prosecutions Philip Murgor, University of Nairobi School of Law dean, Prof Patricia Mbote, High Court judges D.K. Njagi Marete, Said Juma Chitembwe and Mathew N. Nduma.

Others are former commissioner with the Constitution of Kenya Review Commission Alice 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, applied to fill the position left vacant by retired Justice Prof. J.B. Ojwang’ in the Supreme Court.

Also applying to join the Supreme Court are Appellate judge and former Kenya Law Reform Commission chairman Kathurima M’Inoti, Justice Joseph Sergon and lawyer Justry P. Lumumba Nyaberi.

Highest position

JSC uses various considerations in the appointment of a CJ, among them, professional qualifications, gender and regional balance, integrity and probity, understanding of jurisprudence and appropriate distribution of the three arms of government.

Sources within the Judiciary say Mwilu’s decision not to apply for the highest position in the Judiciary may complicate matters for female candidates based on gender balance.

The Constitution makes it mandatory that the positions of CJ and DCJ must be held by persons of opposite gender.

Speculation is rife in the Judiciary that Mwilu may have opted out of the race to ostensibly convince influential people in government to let her complete her term as deputy CJ.

Mwilu faces a litany of cases before the JSC, filed by among others, the Director of Public Prosecutions Noordin Haji and his Directorate of Criminal Investigations counterpart George Kinoti, and some civilians over her suitability to hold public office.Since regional balance would play a major role in the appointment of Maraga’s successor, Mwilu’s decision to remain in her position also complicates matters for candidates from the Eastern Kenya region, particularly those from Ukambani counties.

Likewise, the presence of Njoki Ndung’u in the Supreme Court limits chances for for Ngatia, Mbote and Marete.

Though considered one of the favourites, sources intimate that the fact that President Uhuru Kenyatta and National Assembly Speaker Justin Muturi, who head the other two arms of government, hail from Mount Kenya region, may play against Ngatia’s candidacy.

“Scenario of the heads of all the three arms of government coming from Mt Kenya region may not sit well for President Kenyatta who has already shown interest to involve more tribes in the country’s leadership,” said a senior counsel who declined to be named due to the sensitivity of the matter. 

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