MPs endorse Mutunga, Barasa and Tobiko

By Standard Team

The face of a reformed Judiciary began to take shape after Parliament endorsed the nominees for Chief Justice, Deputy Chief Justice, and Director of Public Prosecutions hours after the nominees for the Supreme Court were released.

It also means that the race to meet deadlines on key appointments to constitutional offices is almost over.

In a stormy session during which nominated MP Millie Odhiambo, who was seconding the Motion, which had been moved by the CIOC chairman Abdikadir Mohammed, was expelled from the House, MPs extended the sitting hours to vote and approve the names of Willy Mutunga (Chief Justice), Nancy Barasa (Deputy Chief Justice), and Keriako Tobiko (Director of Public Prosecutions).

From Left to right: Willy Mutunga, Nancy Baraza, Keriako Tobiko

However, the issue of whether to subject Mr Tobiko for investigations before handing him the job drew a bitter exchange with members trading accusations before Parliament amended the report to clear him from further scrutiny.

Nominated MP Mohammed Affey moved an amendment to the report that deleted one of the recommendations that had sought to have Tobiko subjected to investigations before approval was granted.

The amendment was then passed and the House went on to pass the Motion and give the three the positions.

Endorsed by the President

The matter that led to Ms Odhiambo’s expulsion by Deputy Speaker Farah Maalim was expunged from the Hansard, the official record of parliamentary proceedings.

While moving the Motion, Abdikadir described the debate on the three nominees as "historic since this was the first since independence for names of holders of these offices to be debated in the House.

"The three are Kenyans of exceptional qualities having been nominated by the Judicial Service Commission and endorsed by the President and the Prime Minister," he added.

He described Dr Mutunga as "trailblazer", adding that he was not a stranger to the House.

"He has taught our Speaker, and other honourable members like Gitobu Imanyara, and Moses Wetang’ula, among others. We received testimony from many saying he is an impressive Kenyan," he added.

The chairman showered praises on Ms Baraza, now a PhD candidate, at the University of Nairobi.

If President Kibaki appoints all the nominees as expected, the Supreme Court would be dominated by rank outsiders and reformists led by Mutunga, as president of the court and assisted by Baraza, with Smokin Wanjala and Njoki Ndung’u as other members, who have never served in the Judiciary.

Under Article 98 of the Constitution, it is only the Supreme Court that will determine disputes related to future presidential elections, including next year’s. It is the final court of arbitration after the Court of Appeal.

Big names in the Judiciary failed in their bid to make the list of nominees for the position of the judges of the Supreme Court, as the Judicial Service Commission once again took a radical decision in its composition of the highest court in the land.

Out of seven Court of Appeal judges who had been interviewed for the positions, only one – Philip Kiptoo Tunoi – made the list of five.

Justice Tunoi is the second most senior judge after Justice Riaga Omolo who did not make the cut.

The JSC took yet another bold move, similar to the one it adopted in nominating for the positions of Chief Justice and Deputy Chief Justice, by picking rank outsiders Ms Ndung’u and Dr Wanjala to the court.

For some, it was second time unlucky as they missed the cut yet again. Those who suffered the double tragedy of missing out on either jobs of CJ or deputy CJ and now the Supreme Court judges were justices Riaga Omolo, Joseph Nyamu, Anashir Visram, Muga Apondi, Mary Ang’awa, Hannah Okwengu, Ruth Sitati, and Kalpana Rawal. However, the Bench was not completely ignored as the other three nominees are sitting judges.

A source told The Standard that apart from professional qualification and integrity, the commission also considered regional balance, as the new Constitution requires.

Should the five names go through and result in official appointment by President Kibaki, it would effectively mean that many of those to sit in the seven-member court would be people who have not served in the Judiciary.

If appointed therefore, four of seven judges in the Supreme Court would be people who have never served in the Judiciary. In creating a court that has majority of its members from outside the Judiciary, the JSC appeared to take a strong leap of faith on the outsider’s ability to redeem the tainted image of the third arm of Government.

Political activists

The appointment would be a sweet reward especially for Njoki, a former nominated MP and former member of the Committee of Experts, that drafted the Constitution and Wanjala, the former Deputy Director of the Kenya Anti-Corruption Commission, who have spent much of their time in civil activism.

It would also reward Justice Ibrahim, who also hitherto his appointment to the Bench in 2003, was in activism. He was among lawyers and political activists detained without trial on the eve of the Saba Saba rally in 1990, during the clamour for multipartism.

The opportunity to serve in the court also eluded seven other High Court judges who had been among the 23 candidates who eventually faced the panel for interviews.

Another of their colleagues, Jessie Lesiit, failed to honour the interviews, despite being nominated.

The nomination of the five on Wednesday was especially a big blow to some of the judges who had earlier failed to clinch nominations for the CJ and Deputy CJ in earlier interviews.

In making the nomination, the JSC said it was guided by Article 166 (b) of the Constitution.

In a statement read by acting Chairperson of the commission Christine Mango, JSC expressed confidence that it had picked the right people, who can reform the Judiciary.

"The commission is alive to the expectations of Kenyans and the role expected of the Supreme Court in shaping and guiding Kenyans on various issues. We are confident that we have picked the right candidates," said Prof Mango.

"We have picked candidates with the necessary diversity, deep intellect, profound standing, impeccable integrity, and appropriate experience," she said.

The commission will now forward the names of the five for approval to President Kibaki, who after consultation with Prime Minister Raila Odinga will pass the list to Parliament for its approval.

It is only after the clearance from the House that the President will formally appoint the judges to the Supreme Court.

But although the nominees have passed the major test, they would have to face another hurdle, especially in Parliament, if what happened to the CJ and Deputy CJ nominees were anything to go by.

Should Parliament decide to further interrogate the nominees as it did to Mutunga and Baraza, the five would have to brave themselves for another grueling round of questioning on their suitability for office.

Others who had been interviewed for the positions were former chairman of the International Commission of Jurists-Kenya Section, Wilfred Nderitu, University of Nairobi Faulty of Law Dean, Otieno Odek, Law Reform Commission Chairman Kathurima M’Inoti, and Nairobi lawyer Joseph Obado Adera.

—Reporting by Isaiah Lucheli, Moses Njagih, Alex Ndegwa and David Ochami