How absence of deputy CJ could fuel crisis after polls

By Wahome Thuku

KENYA: There could be a constitutional crisis after the March 4 General Election due to the vacancy in the office of the Deputy Chief Justice.

This could arise if Chief Justice Willy Mutunga is unavailable to witness the swearing-in of the next president.

Under the Constitution, the president-elect must be sworn-in public before the CJ. And if the CJ is absent the president-elect can only be sworn-in before the Deputy Chief Justice.

Besides the swearing-in of the president-elect, the question of deciding a possible presidential election petition by the Supreme Court has also raised the need to fill the position of DCJ, who is the deputy president of the Supreme Court.

But the office of the DCJ left vacant after the resignation of Nancy Baraza last year, cannot be substantively filled without the approval of Parliament.

This has now put the Cabinet in conflict with the Judicial Service Commission (JSC), mandated to initiate appointing of all judges including the CJ and DCJ.

In anticipation of a possible crisis, the Cabinet recommended on Thursday that the CJ liaises with the Attorney General to appoint a DCJ in an acting capacity.

But JSC commissioner Ahmednasir Abdullahi dismissed the recommendation, saying a new DCJ had to be picked by the commission and cleared by Parliament.

Exclusive mandate

“It’s the exclusive mandate of the JSC to decide when judges should be appointed and the Cabinet has no role, they can only raise their concerns,” he says.

According to Article 166(1) of the Constitution, the president appoints the CJ and DCJ in accordance with recommendations of the JSC and the appointment is subject to approval by Parliament.

The Commission has shortlisted five out of 18 applicants for appointment as DCJ and intends to interview them between February 18 and 20.

Gender balancing

For purpose of gender balancing all the candidates are women.

They are Court of Appeal Judge Kalpana Rawal, former Law Society of Kenya chairperson and ambassador Raychelle Omamo Awuor, lawyers Joyce Miguda Majiwa, Lucy Muthoni Kambuni and Okawa Phoebe Nyawade.

But the successful candidate will still have to wait for the election of a new Parliament to vet and approve her appointment.

The new Constitution does not expressly provide for appointment of a temporary judge.

The Judicial Service Act provides that in the event of removal, resignation or death of the CJ, the deputy shall hold the office in acting capacity for up to six months pending appointment of a new holder.

Equally, the Constitution is silent on how the president should be sworn-in, if the CJ and the DCJ are not present.

The other concern is in deciding a presidential election petition by the Supreme Court.

Currently, the Supreme Court has six judges with the absence of the DCJ.

Supreme Court

Under the Constitution, a Supreme Court bench is properly constituted if it has at least five judges seating.

But Dr Mutunga is on record saying a presidential election petition would be heard and determined by the full bench of seven.

Even before the elections, the court may be called to determine any petitions arising from the clearing of a presidential candidate by the Independent Electoral and Boundaries Commission at the end of this month.