A silent stand-off between President Uhuru Kenyatta and Chief Justice David Maraga could have unwittingly set in motion the criminal prosecution of Deputy Chief Justice Philomena Mwilu.
Reports indicate there were concerns that a referral of Mwilu's case to the Judicial Service Commission (JSC) would have prompted the DCJ to excuse herself, occasioned a quorum hitch and effectively stalling any further proceedings against her in the JSC.
JSC is tasked with investigating claims of misconduct against judges - and recommending their removal from office if necessary - as was the case with former DCJ Nancy Baraza in 2012.
Ms Baraza resigned in 2012 after a security guard alleged that she pinched her nose and threatened to shoot her at the Village Market mall.
A tribunal formed at the time found her guilty of gross misconduct and recommended that she be removed from office for “inability to control her behaviour".
The Standard could not authoritatively link the Uhuru-Maraga stand-off over the swearing-in of new JSC commissioners to the current case. However, there are subtle undertones.
Senior Counsel Ahmednasir Abdullahi yesterday told The Standard the JSC would face a constitutional hurdle of lack of quorum if Justice Mwilu stepped aside.
“As it were, if Justice Philomena Mwilu goes back, they will have a quorum but if she vacates, the JSC will be paralysed,” he explained. Were a petition against her to be filed at JSC, Mwilu would inevitably have to leave any further proceedings on the matter.
Lawyer Moses Kurgat said there was a danger of JSC’s decisions being challenged in court if it does not have the requisite minimum number of commissioners.
“In my view, this is a commission that is mandated by the Constitution to have a quorum. If it does not have, it cannot carry out any constitutional mandate and its decisions can be challenged in a court of law,” Mr Kurgat said.
With 10 commissioners, the quorum for JSC to conduct any business is six. But complications have arisen because four new commissioners have not been sworn in because of a silent tussle between the Executive and the Judiciary.
President Uhuru has reportedly declined to gazette the name of Justice Mohamed Warsame to sit at the JSC.
The President had forwarded Justice Warsame’s name to Parliament for consideration by the Justice and Legal Affairs Committee before his formal appointment to the JSC.
But the Judiciary opposed his vetting by MPs. In March, the Chief Registrar of the Judiciary. Anne Amadi, wrote a protest note to the Clerk of the National Assembly, Michael Sialai, saying the proposed proposal of Warsame was “unlawful, unconstitutional and undermines the independence of the Judiciary.”
JSC subsequently filed a case at the High Court which ruled that Warsame did not require vetting by MPs. The President has yet to gazette Warsame. In turn, it is said Mr Maraga has, too, declined to swear in three commissioners nominated by the President and Attorney General Kihara Kariuki, who is the principal legal adviser to government.
Consequently, former Kenyatta University Vice Chancellor Olive Mugenda, ex-Cabinet secretary Felix Koskei and former clerk to the National Assembly Patrick Gichohi have not been sworn in.
Matters have not been made better by the fact that the AG has not taken his seat on the JSC because the Chief Justice has insisted that the three presidential nominees be sworn in at the same time as Warsame.
As a result, the JSC has been crippled because the three appointees as well as Warsame and the AG have not taken their places.
Yesterday, a JSC commissioner acknowledged the silent struggle.
According to the commissioner, the CJ has insisted that he will only swear in all the commissioners.
"The Chief Justice has insisted that he has to swear them in together. He cannot swear in the rest and leave out Warsame,” said the commissioner in confidence.
The commissioner said JSC had written to the President on several occasions, asking him to gazette the Appeal Court judge, but he has not acted despite promising to do so.
“The President is defying the Constitution and JSC has written to him several times and we even have responses, promising that he will gazette Warsame,” the commissioner added.
Those in the know claim that as constituted, the JSC could not decide Mwilu's case.
However, Tom Ojienda, a commissioner of JSC, insisted that the commission's operations had not stalled as it had the required numbers.
He said although Mwilu was facing criminal charges, it did not stop her from conducting her business as the Deputy Chief Justice and a commissioner representing Supreme Court judges.
“There is no quorum hitch at JSC, we are conducting business as usual. Even the DCJ is still sitting as the JSC commissioner. The fact that she has been taken to court does not mean she ceases to be a commissioner,” said Prof Ojienda.
On Tuesday at 7am, the CJ, who chairs the commission, Mwilu, Mercy Deche (vice-chairperson), Emily Ominde, Justice Aggrey Muchelule and Ojienda were in the Supreme Court’s boardroom.
The agenda was how to handle the Mwilu controversy that has now rocked the Judiciary.
But with the JSC route seemingly problematic and coupled with the pressure to pass the message that nobody was immune, the DCI and the DPP decided to proceed with the criminal prosecution.
“The only plausible explanation seems to be that the establishment was getting back at the Judiciary, both because the Court of Appeal had disregarded its preferences in the election and also a continuation of the retribution against the leadership of Chief Justice David Maraga,” said a senior lawyer who requested not to be quoted.
Lawyer Okweh Achiando said the only way to resolve the numbers stalemate was to implore the President to have all the commissioners in office.
“If I were Noordin, I would not have taken the DCJ to court. If there was no quorum, I would have asked the President to gazette those who had been nominated or elected so that once everything is regularised then I would write to JSC and have the due process of removing a judge from office followed,” he said.
Kurgat affirmed Mr Achiando’s position, saying Noordin should have written to JSC to have the senior judge tried by a tribunal.
“The DPP ought to have invoked Article 68 of the Constitution to have the JSC handle the matter,” the lawyer said. But again, if you consider the independence of a court, nothing stops the magistrate from trying his boss. Being an administrator has no legal underpinning and the judge can be replaced by another person.