CJ Willy Mutunga’s exit headache as 2017 General Election edges closer

Chief Justice Willy Mutunga (left) is briefed on how to prepare a traffic fines’ register by Francis Kimani. There is quiet lobbying for the CJ's position ahead of Mutunga's exit. [PHOTO: GEORGE NJUNGE/STANDARD]

NAIROBI: The imminent change of leadership in the Judiciary is increasingly being thrust into the spotlight, particularly because of the critical role of the Supreme Court in the run-up to the 2017 General Election.

Chief Justice and President of the Supreme Court Willy Mutunga is expected to leave the influential seat by June 15, 2017 when he turns 70 and quiet lobbying for the position is already under way.

Leaders admit that politics is expected to take centre-stage in the succession battle. The change of guard will also include replacement of Deputy Chief Justice (DCJ) Kalpana Rawal in December this year and two other Supreme Court judges who will also have attained the retirement age.

The Supreme Court is critical because it rules on presidential petitions.

It is because of such a role that observers insist the country must have a substantive CJ and DCJ, 90 days before the next polls. According to the Constitution, the next General Election will be held in August 2017.

Those rumoured to be in the race for the CJ seat include Attorney General Githu Muigai, Supreme Court judges Njoki Ndung’u and Smokin Wanjala, High Court judges Isaac Lenaola and Mbogholi Msagha and Court of Appeal President Kihara Kariuki.

The Judicial Service Commission (JSC) must be properly constituted at the time of recruitment of the judges. One of the commissioners, Emily Ominde, who represents the magistrates at the commission will end her term in October this year.

Female representative of the Law Society of Kenya (LSK) Florence Mwangangi’s term ends in December and elections are slated for March 2016 to get a successor.

NEW NOMINEES

Parliament must also be in session to vet the new nominees before the end of its eleventh term, which is expected to end in May 2017 unless the election dates are shifted to December.

Mutunga will not sit in the interviewing panel as the vacancy of the CJ will only arise after he retires and he, therefore, cannot influence the selection of his successor.

Leaders who spoke to The Standard maintained that the leadership of the Judiciary must be properly constituted before the next general election.

Senator Mutula Kilonzo (Makueni), Peter Kaluma (Homa Bay Town) and LSK Council member Aggrey Mwamu are in agreement that the country must have a substantive CJ 90 days before the next polls.

“Parliament is supposed to vet the Chief Justice’s position and therefore if Mutunga retires in June 2017, we will be time-barred. Nobody will be around to vet his predecessor as the Legislature would have been disbanded,” noted Kilonzo Jnr.

He continued: “The country must have a substantive Chief Justice and deputy in office. The law requires that every institution concerned with elections should be fully constituted.”

Kilonzo added that there might be cases challenging the suitability of presidential candidates or petitions arising from the primaries, that will require the direction of the head of the Judiciary to expedite the justice process.

“These cases should be dispensed before the actual elections. The arbitration of election and nomination disputes failed after unsuccessful arbitration exercise by the Independent Boundaries and Electoral Commission. The transition process should be seamless to earn public trust. Mutunga should be out of the Judiciary by December 2016,” said the senator.

Kaluma said the new CJ should be in office by December 2016.

“Mutunga should exit before the elections,” said Kaluma. He emphasised that the new CJ should be a sitting judge who understands well the challenges of the institution.

Kaluma and Mwamu credit Dr Mutunga with many reforms in the Judiciary, stating that the person to take his place must be equal to the task.

“There is going to be serious lobbying within the Government circles and the Opposition but this exercise should be free and fair. The Government should keep off and the appointee should not be inclined to either side of the political divide,” said Kaluma.

Mwamu reaffirms that once the position falls vacant, the campaigns among judiciary officers will openly heat up as the aspirants apply.

“In looking for the right candidate, political interest will play out. Nevertheless, we are optimistic it will be very professional. Those who might want to influence the process through the JSC should desist,” said Mwamu.

Efforts to get a comment from the CJ were futile as his phone went unanswered.