The falling-out in the Judicial Service Commission (JSC) on how to proceed with the recruitment of the next Chief Justice has revealed be-hind-the-scenes manoeuvres to control the process.
Concerns over a ‘revisit’ plot to stop Deputy Chief Justice Philomena Mwilu from taking over as Chief Justice, even if it is in acting capacity, emerged as the falling-out over JSC member Macharia Njeru’s Friday’s public statement discussing internal deliberations of the commission opened a can of worms.
In November 2019, a visibly angry Chief Justice David Maraga addressed the nation and spoke of a plot to send him home before his retirement date.
“Some CSs (Cabinet secretaries) are saying I will go before the year ends, kumbe hii Kenya ina wenyewe (apparently Kenya has real own-ers)?” said the Chief Justice.
Now with less than three months before he retires, his statement in November 2019 appears to get a confirmation.
In the statement, Mr Njeru who is on record advocating the recruitment of Mr Maraga’s successor to start now even before the Chief Jus-tice’s office becomes vacant, accused Mr Maraga and his deputy Ms Mwilu of being “hellbent on derailing the orderly process” of recruiting the next Chief Justice.
The Law Society of Kenya (LSK) has distanced itself from Mr Njeru’s statement and accused him and its representative Dr Mercy Deche of taking a position that is “manifestly unlawful and unconstitutional” by attempting to begin the recruitment of the next Chief Justice while Mr Maraga is still in office.
“We are aware of attempts to amend the law with the selfish and myopic intention of targeting Justices David Maraga and Philomena Mwilu who appear to have been shackled with the highest blame for the September 1, 2017 decision annulling the election of President Uhuru Kenyatta,” LSK said in a statement.
Speaking to the Sunday Nation yesterday, Mr Njeru struck a defiant tone, insisting that the LSK cannot control what he does in his position as a commissioner at the JSC.
“I have a mandate from members because I was elected directly just like them. I take a position as a commissioner,” he said.
Mr Njeru is in the faction of JSC commissioners who want the recruitment of the next Chief Justice to start now. But according to his state-ment, the proposal has been opposed by the Chief Justice, the Deputy Chief Justice and Justice Mohamed Warsame.
A source within the Judiciary told the Sunday Nation of an “urgent” plot to stop Ms Mwilu from serving in an acting capacity once Mr Maraga leaves office on January 12, 2021, by having a candidate on standby. Constitutionally, the Deputy Chief Justice takes over as acting Chief Justice in the absence of the Chief Justice.
In the absence of both, the senior-most judge steps in. Supreme Court judge Mohammed Ibrahim did that when former Chief Justice Willy Mutunga and his then deputy Kalpana Rawal both retired at about the same time in June 2016.
Yet with the next Chief Justice recruited ahead of time, the candidate will just be waiting on the wings to be sworn in as soon as Mr Maraga retires.
Attempts to remove Ms Mwilu from office have so far stalled as JSC is yet to make a determination on the petition by the Director of Public Prosecutions Noordin Haji to remove her from office.
But Mr Njeru dismissed the claims that he and others within the commission who favour an earlier start to the recruitment may be targeting the Deputy Chief Justice.
“If anybody wants to say anything about me let them say so in public like I did. I am addressing a substantive appointment of a Chief Jus-tice. Let us remain focused on that. I do not want to engage with other shenanigans from unnamed people,” he said.
In the statement dissociating from Mr Njeru’s public position, the LSK also hinted at a “nefarious, illegal enterprise intended to subvert the Constitution of Kenya and interfere with the independence of the Judiciary.”
“We are aware of attempts to amend the law with the selfish and myopic intention of targeting Justices David Maraga and Philomena Mwilu who appear to have been shackled with the highest blame for the September 1, 2017 decision annulling the election of President Uhuru Kenyatta,” said LSK in the statement.
LSK added that the two top judges were also being targeted because of the push by the Chief Justice to have the President swear in individuals recommended for appointment as judges, the request by the Judiciary to implement the Judiciary Fund, and the Chief Justice’s advisory to President Kenyatta to dissolve Parliament.
As it is currently, Section 30 of the Judicial Service Act and its First Schedule requires that the recruitment of the Chief Justice and the deputy commences only after the vacancies occur in the respective offices. The procedure also requires that a declaration of vacancy be first announced in the Kenya Gazette before the advertisement of the vacancy is done.
But the Judicial Service (Amendment) Bill which has been published however seeks to amend Section 30 to provide that the recruitment should start six months before the end of the Chief Justice’s term.
According to LSK president Nelson Havi, before the amendment is adopted, the law as currently prevails.
