Justice Ibrahim Mohamed’s death: What next for the Supreme Court
Supreme Court judges (from left) Isaac Lenaola, Dr Smokin Wanjala, Philomena Mwilu, Chief Justice Martha Koome, the late Mohamed Ibrahim, Njoki Ndung'u and William Ouko.
The death of Judge Mohamed Ibrahim has created a vacancy at the Supreme Court, but there is no crisis as the law prescribes what to do in instances of absences or vacancies to avoid total paralysis of the court.
If a judge dies or is otherwise unable to participate in a matter already in progress, there are provisions for substitution to complete outstanding judgments.
Article 163 (2) of the Constitution states that the Supreme Court is properly constituted, for purposes of its proceedings, if it is composed of five judges.
There is also no specific constitutional timeline within which the vacancy must be filled. The process is, however, guided by the Constitution and the Judicial Service Act.
The Judicial Service Commission (JSC) will declare the vacancy through Kenya Gazette and advertise the same in national newspapers and on the Judiciary's official channels such as the Judiciary portal.
The commission will then invite public input, do the shortlisting, before conducting interviews in public.
The Commission conducts thorough background checks with various agencies, including the Kenya Revenue Authority (KRA), the Ethics and Anti-Corruption Commission (EACC), the Directorate of Criminal Investigation (DCI), and credit reference bureaus.
Applicants must meet specific qualifications. Article 166 (3) states that a candidate must have at least fifteen years’ experience as a superior court judge or (b) at least fifteen years’ experience as a distinguished academic, judicial officer, legal practitioner or such experience in other relevant legal field.
The applicants must also demonstrate high moral character, integrity, and impartiality.
The name of the successful candidate will be forwarded to the President for formal appointment. This is unlike the case of the Chief Justice and the Deputy Chief Justice, whose appointments has to be approved by the National Assembly.
Courts have in past decisions said the President’s role in the appointment of judges is limited to appointment, swearing in and gazettement. The President cannot purport to “process,” “vet,” “approve,” or “disapprove” the said nominee. This is because the President has appointees representing at the JSC and who take part on the nomination process.
Follow our WhatsApp channel for breaking news updates and more stories like this.
