Civil society, Ainamoi residents move to block Maraga’s appointment

It is not over until it’s over for Chief Justice nominee Justice David Maraga.

As the battle for the top-most judicial office shifts to Parliament this week, The Standard on Sunday has learned of a planned twin-prong assault on the affable judge by Ainamoi residents and some civil society activists.

In the first prong of the assault, residents of Ainamoi Constituency have officially moved in to block his approval, on account of how he handled the murder case of their former MP David Too in 2008.

In the second prong, civil society activists coalescing around International Centre for Policy and Conflict’s (ICPC) Ndung’u Wainaina are pushing the Judicial Service Commission (JSC) to a corner to account for their unanimous decision to pick the judge.

Parliament begins vetting Justice Maraga on Wednesday and this is the last hurdle between the judge and the job. In their petition received by the National Assembly Records Unit on October 3, Ainamoi residents want the court ruling revisited.

Marking scheme

Too was murdered in January 2008 barely a month after he was elected in the December 2007 elections. Justice Maraga, then sitting in Nakuru, sentenced Andrew Moeche to 10 years in prison for manslaughter.

On the civil society front, Wainaina has been pushing the JSC to publicly give out the “marking scheme” of the CJ interviews which saw Maraga score 84 per cent, Supreme Court Judge Smokin Wanjala 74 per cent, law Professor Makau Mutua 72 per cent and Senior Counsel Nzamba Kitonga 70 per cent. He has also wants to know how each JSC commissioner ranked the candidates, and that JSC “publicises the summary marking scheme.”

“Thank you. We shall place your request before the JSC for consideration at the earliest opportunity and revert,” Chief Registrar of Judiciary Anne Amadi responded on September 26, 2016.

The Standard on Sunday has learned the information sought by Wainaina is meant to inform a wider parliamentary and court challenge on the credibility of JSC’s conduct in the recruitment process.

A letter in our possession written by activist George Kegoro to the Law Society of Kenya expresses grave displeasure with JSC’s conduct in the process. There is a strong feeling among this group, which also includes law scholar Prof Yash Pal Ghai, that the current JSC rolled back the clock on CJ recruitment.

“A curious outcome is that the JSC achieved unanimity as to Justice Maraga being the best candidate. If it can be shown that there are well-founded fears that the JSC contrived the outcome of the interview process, this would go to the heart of the credibility of judicial appointments and would, in future, prevent qualified candidates from offering themselves for appointment as judges,” Kegoro’s letter copied to Ghai, Mugambi Kiai and Waikwa Nyoike says.

Wainaina has since written back to JSC demanding “expeditious” and “timely” responses: “JSC is highly opaque, which raises serious credibility concerns on its process. It is rogue. JSC must be beyond reproach.”

The upshot of all this, The Standard on Sunday has learned, is an impeding court challenge on the whole process of recruiting, nominating and appointing Justice Maraga.