Did Judicial Service Commission ignore Mutunga advice on successor?

The Judicial Service Commission (JSC) may have ignored guidance of its immediate former chairman Willy Mutunga in the ongoing recruitment of Chief Justice and Deputy Chief Justice.

A memorandum presented to the JSC by Dr Mutunga before he exited the Judiciary cautioned against condoning secrecy, reducing contest to "insiders versus outsiders" and entertaining negative gender, age and seniority determinants.

In the memo titled "Reflections on the process of recruiting the CJ and DCJ", Mutunga invited the JSC to rise to historic call of rescuing the country from brink of precipice.

The memo also contained one of Mutunga's sharpest indictments of the Executive and Parliament and condemned the Jubilee government for re-introducing "wedge politics" of yesteryears.

"These institutions seem to have shelved, consciously or otherwise, the project of state and nation building. Matters of national interest are addressed through partisan lenses and the game in the country seems to be to get political power by any means necessary," he said in the memo.

Mutunga said the country is "dancing dangerously on a precipice of dismemberment and disintegration" in 2017, courtesy of an irresponsible political elite. He said that is why the JSC ought to get it right on the recruitment.

The memo also listed "concrete suggestions" and "concrete actions", which Mutunga said would enable the JSC get the right candidates.

On ethnicity, Mutunga had required the JSC to trash the argument that some communities cannot produce a CJ or are excluded simply because they share ethnicities with him or with heads of other arms of government.

Opposing what he called "age as a determinant" fallacy, Mutunga said the notion that the next CJ should be old enough only to serve for a minimum period of time would reduce the office to a merry-go-round game, which would expose the office to "it's-our-turn-to-eat ailments".

"The narrative that the CJ is for men while that of the DCJ is a preserve for women is false and must be debunked. Kenyans need to know that both offices can simultaneously be occupied by women," Mutunga said.

Acting JSC chair Margaret Kobia is, however, on record contradicting this, "If it happens to be a woman for CJ then deputy must be a man, or vice versa." In the Citizen TV interview, Kobia added: "That's how it works. If the CJ is a man, most likely... not most likely, the Deputy CJ will be a woman."

Mutunga also advised the JSC against "cattle-dip queue approach in the recruitment, which merely shoves ahead those who are already higher up". He said the CJ can be recruited from any rank of court of judges or magistrates.

In the JSC's shortlist for DCJ, most of the judges picked were from the Court of Appeal. The only magistrate who applied for both DCJ and judge position - Judith Wanjala - was knocked off.

Similarly in the CJ shortlist, majority of the five judges in the final shortlist of six were from the Court of Appeal, the second highest in the tier after the Supreme Court. One was from the Supreme Court and one from the High Court.

In the memo, Mutunga condemned an "internal judicial force", which he claimed was determined to recruit the CJ and DCJ from serving judges. He said the agenda of this group is unconstitutional and illegal. He urged the JSC to pronounce itself to the public on this matter.