The race to succeed President Uhuru Kenyatta in 2022 has been cited as partly fuelling silent succession wars in the Judiciary.
Observers say that Uhuru succession and Chief Justice David Maraga’s tenure that ends before 2022, have stirred a vicious battle to reconstitute the Supreme Court.
CJ Maraga, and two other judges are set to retire before the next General Election. The fate of three other judges hangs in the balance after petitions were filed against them.
Observers say rival political camps are attempting to influence the composition of the Supreme Court, arguing the unfolding events are calculated to trigger the reconstitution of the court that handles presidential election petitions.
A dispute at the apex court is determined by a simple majority of the seven judges. Analysts argue that political rivals would want to have majority of the judges on their side should a presidential election petition be filed after the 2022 poll.
That the court may be called upon to decide on the eligibility of a key contender in the poll has further raised the stakes. Former Jubilee Party chairman, David Murathe, has vowed to fight to the Supreme Court to block the candidature of Deputy President William Ruto.
At 68 years, Chief Justice David Maraga is set to retire in January 2021 upon attaining the mandatory retirement age of 70.
However, sources close to the CJ said he may decide to follow in the footsteps of his predecessor, former CJ Willy Mutunga, and leave at least one year before his retirement age to give the Judicial Service Commission (JSC) enough time to recruit his successor.
Dr Mutunga was supposed to retire in June 2017 but exited office in June 2016. Then, JSC moved to avoid a vacuum and nominated Maraga in September 2016.
Although JSC has recommended that the President appoints a tribunal to investigate Justice Jackton Ojwang, the judge was bound to retire next year, creating yet another vacancy at the Supreme Court.
Justice Mohamed Ibrahim will be next in line for retirement while the fate of judges Smokin Wanjala and Njoki Ndungu are still in the hands of the JSC.
Deputy CJ Philomena Mwilu is fighting prosecution in a criminal case, accusing the Director of Public Prosecutions of seeking to oust her from the Supreme Court.
In the 2017 presidential election, four judges- Maraga, Mwilu, Wanjala and Isaac Lenaola- nullified the election of President Uhuru Kenyatta following a successful petition by Opposition leader Raila Odinga.
The petition victory sparked outrage with thinly veiled threats that the Jubilee government would "revisit" the ruling.
Raila boycotted the repeat vote which Uhuru easily won. The Supreme Court subsequently upheld his election alongside Deputy President William Ruto.
Raila, who struck a deal with Uhuru in March last year to end political acrimony following the disputed presidential vote, and Ruto are seen as front runners in the race to succeed Uhuru who retires at the end of his second term in 2022.
Yesterday, former East Africa Law Society President, James Mwamu, said that based on what happened in 2017, Jubilee will be keen to see who takes up the slots at the Supreme Court.
“We can’t rule out political interest in the race to reconstitute the Supreme Court. There are a lot of intrigues and power play that is going to influence the succession in the Judiciary before 2022. The executive will not just sit back and watch things happen,” argued Mwamu.
According to the lawyer, 2022 will be a year for change of guard in leadership, and politicians want to be part of any process of reconstituting the top court in readiness for election petitions.
Lawyer Henry Kurauka argued that political interests in who takes the helm at the judiciary is already manifested in the composition of the JSC.
The composition of JSC has a huge impact of who becomes the next CJ and judges who sit at the apex court, making it the entry point for politicians and wheeler dealers who want to control the judiciary.
Kurauka argued politicians are behind the numerous complaints filed against judges of the Supreme Court.
“It is true there are intrigues and competition to outshine each other. There is a lot of politics in the Supreme Court and the succession battle is taking another shape. It is most likely that the next CJ might be from outside the court,” said Kurauka.
Nandi Senator Samson Cherargey said that when Jubilee criticised the Supreme Court over the nullification of Uhuru’s election, it promised to revisit the issue of judges' integrity.
Mr Cherargey, who is the Senate Justice and Legal Affairs Committee chairman, said the committee is keenly watching the Courts' succession process.
“It will be dangerous to have judicial officers with political leanings. We know there are those who will want to lobby and that the appointing authority will want to have its own, but we must have credible officers in our judiciary,” said Cherargey.
Makueni Senator Mutula Kilonzo Junior, however, doubted that the push against the Supreme Court was politically driven. Instead, he blamed internal wars arising out of 2017 election petitions.
"I doubt the wars in the Supreme Court are politically driven. The jury is out on the 2022 race. The Supreme Court is a victim of its success or failure," he said.
Nyeri Town MP Ngunjiri Wambugu said the perceived pressure on the Supreme Court comes from the fact that the Judiciary is shrouded in opaqueness.
"The lack of transparency in how they operate has led to every person running their little part the way they want. This is how we have ended up with weird rulings and conflict among judges," he said.
He suggested that to solve the problem, Kenyans must demand 100 per cent accountability, beginning at the JSC.
"I am working on a Bill that will make it compulsory for all JSC members to go through vetting, and for a mechanism for regular audit of judicial decisions that the public queries," said Wambugu.
National Assembly Majority Leader Aden Duale argued that there is a growing perception that the Supreme Court is pro-rich.
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