No need for acting CJ, says Nyachae

By LUCIANNE LIMO

It will be illegal to have an acting Chief Justice once Justice Evan Gicheru’s term ends on Sunday.

The Commission for the Implementation of the Constitution yesterday said the Constitution does not provide for the position of an acting CJ incase Gicheru vacates office before a new one is appointed.

CIC chairman Charles Nyachae said the Constitution does not envisage the position of acting CJ because it creates the substantive position of deputy CJ under Article 166.

"I don’t know where this notion that an acting Chief Justice will take over came from. Let them show you where in the Constitution it is so stated. We cannot create a position, which is not provided for in the Constitution," he said.

Mr Nyachae said come February 27, when Gicheru leaves office, his functions will be carried out administratively within the Judiciary, under the guidance of the Judicial Service Commission.

The functions of the CJ is mostly administrative and not constitutional and will be handled by the JSC, said Nyachae.

"In the case where the CJ will have vacated office, for whatever reason, for instance death, resignation or incapacity and there is no Chief Justice, the Judiciary as an arm of Government and a State organ will continue to function constitutionally," he added.

He dismissed claims there will be a constitutional crisis following the stalemate over the appointment of new CJ, Attorney General, Director of Public Prosecution and Controller of Budget.

"There is no constitutional crisis," he assured.

The JSC, he said, will in no doubt be guided by the letter and spirit of the Constitution, including the avoidance of any actual or perceived conflict of interest.

The CIC, he said, will move to Court of Appeal in a week’s time to seek guidance on the interpretation of the Constitution regarding the nominations of the four individuals to the Judiciary.

"The CIC seeks to get an authoritative interpretation of the Constitution’s provisions outside the context of the political contestations that have become the subject of the current debate on nominations," he said.

He said the Court of Appeal will be exercising jurisdiction under Section 21(2) of the Constitution that states that "until the Supreme Court is established, the Court of Appeal shall have jurisdiction on matters assigned to the Supreme Court."

Nyachae assured the public that although there is a stalemate on the nominations to the Judiciary, there should be no cause for alarm.

Eases tension

"There is no constitutional crisis as far as the implementation of the Constitution is concerned. Every time we face a challenge in the implementation we cannot claim to be in a constitutional crisis," he said.

He said the Constitution provided effective mechanisms for addressing challenges that arise in the process within the framework of the Constitution.

"In the context of the current public discourse on the constitutional offices, it is unequivocal view of the CIC that to the extent that the issues touch on the constitutional implementation, there is no crisis," said Nyachae.

He said the real threat to the implementation of the Constitution is not the current stalemate, but the partisan and personal politics that has taken stage.