A silent battle to upset the composition of the Judicial Service Commission (JSC) is raging ahead of Monday’s interviews for candidates vying to succeed retired Justice David Maraga as Chief Justice.
If the latest push were to succeed, it could lead to a hang JSC comprising of four commissioners nominated by the president and four others representing judges, magistrates and lawyers.
The latest salvo has been fired by senior counsel Philip Murgor, who wants the JSC to disqualify acting Chief Justice Philomena Mwilu from participating in the recruitment of the country’s third CJ under the 2010 Constitution.
The former Director of Public Prosecutions, who is also eyeing the post of Chief Justice, wants Justice Mwilu out of the interviewing panel, citing her client-advocate relationship with the President of the Law Society of Kenya (LSK), Mr Nelson Havi.
Mr Murgor says Ms Mwilu, who doubles up as a member of the JSC, is likely to have conflict of interest because Mr Havi is her advocate in current court cases and at the JSC, where a petition for her removal from office is being heard.
"Havi and Commissioner Mwilu are presumed to consult as often as is required to prepare for the multiplicity of cases," says Mr Murgor.
But he explains "this would not ordinarily present a problem, save for the fact that during the ongoing nomination, Mr Havi has become the greatest commentator on the confidential process on social media, going as far as expressing preference for some candidates, declaring others as unsuitable and predicting the eventual outcome".
He recalls that Mr Havi recently wrote a letter to the JSC objecting to his (Mr Murgor’s) nomination as a candidate for the post of Chief Justice or Supreme Court judge. Mr Havi had also objected to the nomination of Justice Martha Koome and Prof Kameri Mbote.
In a letter to the JSC, Mr Murgor also cites another client-advocate relationship between Ms Mwilu and senior counsel Fred Ngatia.
Mr Murgor says in 2012, when all the judges were subjected to a vetting process to determine their suitability to remain in the judiciary, Mr Ngatia represented Justice Mwilu.
"By virtue of the then subsisting client-advocate relationship in a matter that was extremely critical to the judicial career of Justice Mwilu, a lifelong debt of gratitude is created towards Mr Ngatia, which would render her partial in any selection process involving him as a candidate," argues Mr Murgor.
In his view, Justice Mwilu should declare interest and extent of her relationship with Mr Havi and Mr Ngatia. He wants the JSC to resolve the preliminary issue of perception of conflict of interest before the interviews start on Monday April 12.
Should Justice Mwilu disqualify herself, the JSC membership would go down by two, which could bolster the State’s influence over the recruitment process.
JSC is supposed to have 11 commissioners but with the office of Chief Justice – who is supposed to be the chairperson – vacant, following the retirement of Justice David Maraga, it currently has 10.
The President also nominated Prof Olive Mugenda and Mr Felix Koskei as the two public representatives.
Attorney-General Kihara Kariuki, who is the President’s principal legal adviser, is also a member of JSC.
If Deputy Chief Justice Philomena Mwilu were to step aside, it would mean a hung JSC.
The other four commissioners are Justice Mohamed Warsame, who represents Court of Appeal judges, Justice David Majanja representing High Court judges, Chief Magistrate Evelyne Olwande, representing magistrates as well as lawyer Macharia Njeru for LSK.
The other LSK representative, Mercy Deche, completed her term last month. The selection of a new nominee is mired in controversy.
At the same time, Court of Appeal judge Martha Koome has questioned the basis of Mr Havi's memo in objection to her candidature for the post of Chief Justice and Supreme Court judge.
In her response to JSC Secretary Anne Amadi, Justice Koome wants the JSC to help in determining who the real complainant is between Mr Havi and the LSK.
"That determination is crucial because I have been given a certificate of good conduct by LSK and the Disciplinary Tribunal confirmed I have no complaints pending before it. Furthermore, I have seen a memorandum signed by council members of the LSK disassociating LSK from the allegation (by Havi) and stating clearly that I have no complaints before the LSK," says judge Koome.
She says Mr Havi has attacked her personally by stating that she is unsuitable for the position of Chief Justice because she has twice unsuccessfully applied for the same position.
"The fact that I have previously attended interviews before the JSC for posts other than the Chief Justice is not in itself a disqualification, nor is it a demonstration of “having failed”. This is the first time I have applied for the position of Chief Justice, for which I verily believe I am eminently qualified," she responds.
She will be battling it out with her boss, Court of Appeal President Justice William Ouko as well as High Court judge Said Juma Chitembwe and Employment and Labour Relations judges Mathew Nduma Nderi and Njagi Marete.
Those from outside the Judiciary are senior counsels Ngatia and Murgor, Prof Patricia Mbote, Prof Moni Wekesa and Ms Alice Jepkoech.
