JSC fights order stopping interviews

Lawyers Anita Masaki, Danstan Omar, Shadrack Wambui and Litty Kathurima for defendant Memba Ocharo attend the appeal case hearing virtually yesterday. [Collins Kweyu, Standard]

The fate of 10 candidates seeking to be Chief Justice will be known today as the Judicial Service Commission (JSC) puts up a brave fight to have orders that stopped it from concluding the process lifted.

The commission, in its submission before the Court of Appeal, argued that the order issued by High Court judges Anthony Mrima, Reuben Nyakundi and Wilfrida Okwany was wrong, unjustified and likely to plunge the country into a constitutional crisis.

Through lawyer Eric Gumbo, the commission told Appellate judges Roseline Nambuye, Sankale ole Kantai and Patrick Kiage that the order has caused anxiety, not only to the JSC but also to the public that has an expectation for the process to conclude so that we have a new CJ.

“The Constitution is clear that a vacancy in the CJ’s position must be filled within six months. There are only two more months remaining since the vacancy occurred and if the orders are not lifted, the country is going to be plunged into a constitutional crisis,” said Gumbo.

The High Court judges on Wednesday last week stopped the JSC from proceeding to evaluate the candidates for CJ and interviewing the candidates for Supreme Court judge, pending determination of three petitions filed by Philip Muchiri, Damaris Ndirangu and Memba Ocharo.

According to the judges, the petitions had raised weighty constitutional issues about who should chair the commission in the absence of a CJ that should be determined before the process proceeds. The petitioners had argued that in the absence of a CJ, Deputy Chief Justice Philomena Mwilu should be the one chairing the interviews process as opposed to Prof Olive Mugenda.

Gumbo, however, submitted that the High Court judges misdirected themselves and reached an unreasonable decision to stop the recruitment process when the issue did not raise any weighty constitutional question.

In any event, he told the Appellate Court, each of the JSC commissioners only has one vote when they are making a decision and that a person cannot influence the outcome by virtue of being the chairperson.

He was supported by the Attorney General, through lawyer Paul Nyamodi, who argued that Justice Mwilu is sitting at the JSC as a representative of the Supreme Court and thus cannot act as the chairperson in the absence of the CJ.

He said a CJ must take oath of office to assume some functions and since Mwilu did not take that oath, she could not assume the position of JSC chair. “There is a distinction between the Judiciary and JSC. She sits at the commission as the Supreme Court representative and not the DCJ and cannot be assumed to be automatically the commission’s chairperson,” said Nyamodi. Senior Counsel Waweru Gatonye representing Prof Mugenda said the country is staring at a constitutional crisis and that it is in the public interest that the orders be lifted.