Activist Okiya Omtatah has rushed to court in a bid to stop Deputy Chief Justice Philomena Mwilu from taking over as acting Chief Justice once David Maraga retires .
CJ Maraga is set to officially retire tomorrow after serving as the country’s 14th Chief Justice since October 2016.
In Mr Omtatah's petition, he argues that DCJ Mwilu is not fit to hold the CJ office because of the corruption allegations leveled against her by the Directorate of Criminal Investigations (DCI).
Activist Okiya Omtatah at the Milimani Law Courts.
Photo credit: File | Nation Media Group
The activist wants the petition certified as urgent, and is awaiting directions from the duty judge.
In his petition, Mr Omtatah says Judge Mwilu is not suitable to hold the office of Chief Justice because of four petitions filed at the Judicial Service Commission (JSC) questioning her integrity.
He wants the JSC to bar Judge Mwilu from assuming office of the CJ unless and until it clears her of the accusations levelled against her in the four petitions seeking her removal.
Since the JSC has delayed in determining the petitions, which were lodged two years ago, Mr Omtatah wants court to issue a compelling order to JSC to conclude the matters expeditiously.
"The JSC’s delay in hearing and determining the four petitions seeking the removal of the DCJ Mwilu violates Articles 1(1), 2(1), (2) & (3), and 259(1) of the Constitution by deliberately defying the very clear provisions of the Constitution and national legislation," Mr Omtatah says in his petition.
The first petition against Ms Mwilu was filed at JSC in October, 2018 by Mogire Mogaka, while the second one was filed in June, 2019 by Mr Alexander Mugane.
The third petition was lodged by Mr Peter Kirika in June, 2019 and the fourth by the Directorate of Criminal Investigations (DCI) and Directorate of Public Prosecutions (DPP). The latter was also filed in June, 2019.
"Article 27 of Constitution on equality and freedom from discrimination is violated to the extent that the JSC is not fast tracking the petitions for the removal of the DCJ Mwilu as it did those for the removal of former DCJ Nancy Baraza from office over misconduct," the activists saysays.
According to Omtatah, it is a matter of compelling and overriding public interest that the office of the Chief Justice must at all times be occupied only by persons of impeccable character.
"The petitions ought to have been fast tracked given the gravity of the allegations, the position of the DCJ, and the looming succession in the office of the Chief Justice, with the indicted DCJ set to temporarily occupy the office until the appointment of a substantive Chief Justice," states Mr Omtatah.
An attempt by the State to prosecute Judge Mwilu over corruption-related charges hit a brick wall last year after a five-Judge bench quashed the criminal proceedings on the grounds that it was based on illegally acquired evidence.
The court also found that the decision of the DPP to prosecute was sound legally but the illegal acquisition of evidence irredeemably rocked the foundation on which the charges stood.
Mr Omtatah has listed the DCJ, JSC and the Attorney General as respondents in the case which is waiting directions from the court.
Chief Justice Maraga is set to start his terminal leave on Monday December 15 and officially retire on January 12, 2021.
