CJ race wide open as hopefuls yet to apply three days to deadline

No one has applied for the vacant Chief Justice (CJ) position with only three days to the deadline.

Many of those eyeing the job of CJ, deputy CJ and Judge of the Supreme Court, including some big names, continued playing their cards close to their chests to see who else was interested in the senior judicial seats. By Friday, the Judicial Service Commission (JSC) secretariat had not received a single application for the three positions in a race said to be largely drawn between Judiciary “insiders” and “outsiders”.

Bookmaker’s favourites for the trilogy race — Attorney General Githu Muigai, Supreme Court Judge Njoki Ndung’u and President of the Court of Appeal Paul Kihara — are yet to declare their intentions.

For a long time now, Githu has been said to desire the powerful office of the CJ. Besides being the President of Supreme Court, the CJ also chairs the JSC and is effectively the head of Judiciary. Condemned to work with a powerful understudy, Githu has been restless since the onset of Jubilee administration and has been scouting for a quiet exit route.

Crucial posts

Yesterday, The Standard on Sunday established that Githu has set his sights on Hague-based International Court of Justice judicial appointment whose elections begin in November. “He was never a candidate for the Office of Chief Justice in the first place,” a source at Sheria House said. Githu himself was not available for an independent comment.

Justice Kihara, who has held crucial posts in the Judiciary before, was a finalist in the 2011 CJ recruitment process but lost to Dr Willy Mutunga. But insiders say the judge may opt out on ethnic consideration. There is a belief that the new CJ should not come from Kihara’s ethnic group because the President of the Republic Uhuru Kenyatta and the AG come from the same group.

Supreme Court Judge Smokin Wanjala on the other hand is keeping his cards close to his chest. By yesterday, it was not immediately clear whether he was applying for the job.

The same was the case with Lady Justice Ndung’u. The judge got herself embroiled in the controversial judge’s retirement case to her detriment. Her employer, the JSC, has made a finding of misconduct on her part and reprimanded her. Njoki is also battling two other “offshoot” petitions from the retirement saga.

Other favourites like High Court judge Isaac Lenaola have decided to “play strategic.” Lenaola has opted to go for the Judge of Supreme Court position and work his way to the top some other time.

Lenaola’s application as judge was only awaiting Directorate of Criminal Investigations (DCI) clearance by Friday. Lawyer Nelson Havi says Lenaola fits the bill for the CJ post and no other candidate can possibly beat him to it.“He has both accomplished and illustrious legal career as a lawyer and has performed exceedingly well as a judge,” he said.

Lenaola previously served as Constitution of Kenya Review Commission (CKRC) commissioner, judge at East Africa Court of Justice and Commissioner at Judicial Service Commission (JSC).

Law Professor Makau Mutua has reportedly emerged as the candidate of choice for the same civil society forces which propped Mutunga’s application. “He has been approached and convinced to put his hat in the ring. You will be surprised to know that he has a bipartisan support from senior Jubilee and CORD figures. Unless something happens, he’s in the race,” a source close to Makau said.

Those supporting Makau’s candidacy claim he has serious international standing, great scholarly record and deep understanding of constitutional and democratic reforms. They also claim his scholarship and international work in law have no parallel in Kenya.

Firm but diplomatic

Judiciary “insiders” whose applications for CJ are said to be guaranteed by fall of deadline are Court of Appeal Judges Alnashir Visram, David Maraga and High Court Judge Mbogholi Msagha.

Visram had been nominated for the position of CJ by former President Mwai Kibaki in 2011 but was rejected over the irregular process used to appoint him. He later applied for the position in the JSC process but he lost to Mutunga. Msagha too had applied in the 2011 CJ vacancy and made it to the final shortlist.

The said candidacy of former Committee of Experts (CoE) chair Nzamba Kitonga is in doubt following his appointment as the chairperson of Council for Legal Education two weeks ago. Besides, he is a relative of Mutua and it is possible they want only one of them to run.

“There are some consultations happening at various levels, family and elsewhere, with regard to Kitonga’s possible candidacy. So far, no agreement has been reached,” a relative of the senior counsel said.

For the DCJ post, it is understood that all applicants who slotted their names in the stalled recruitment process last year will hand in their applications next week. Most of the applicants for the DCJ post may also apply for the judge of the supreme court post. By the time Rawal stopped the process, Appellate judges Agnes Murgor, Roselyn Nambuye and Wanjiru Karanja had handed their applications.

Others who had given their applications included former Electoral Commission of Kenya (ECK) commissioner Pamela Tutui, High Court Judge Lydia Achode and lawyer Surinder Kapila. Justice Martha Koome and former ICC victims lawyer Sureta Chana are said to be “serious candidates” for the post.

Law scholar Prof Yash Pal Ghai says the country sorely needs a firm and yet diplomatic CJ. “The new CJ must lead by example, of great depth and understanding of legal matters, complete integrity, inability to be influenced by political, financial or other pressure,” he said.

Law Professor Ben Sihanya adds: “Much more than anything, we need a CJ who is independent and who is strong enough to forestall and reject interference by the system. The names I am hearing do not give me a lot of hope.”

Sihanya, however, regrets that the environment has already been polluted and it is unlikely the country will get a proper CJ.