The Judicial Service Commission (JSC) has opened the contest for the replacement of retired Chief Justice David Maraga by officially declaring the top most position in the legal fraternity in Kenya vacant.
It is this declaration that now gives the judicial officers’ employer a go-ahead to start the process of replacing Maraga who retired on January 11 for the position that comes with prestige and hefty allowances, as a number of sitting judges and lawyers prepare to make their applications.
Acting CJ Philomena Mwilu made the declaration on Monday in a special gazette notice as the acting head of the Judicial Service Commission (JSC), an institution that has the mandate to make such a declaration under the JSC Act.
Justice Mwilu stated in the document that candidates interested in the job should visit the Judiciary’s website for instructions on how to apply.
It is a process that is different from those who have been in the office since 2010, given that it is signed by the acting CJ.
When the late retired CJ Evan Gicheru completed the six months transition in 2011 after the promulgation of the Constitution, he opted to retire instead of being subjected to the process of vetting in order to serve on the Court of Appeal.
And in exercising powers under schedule sixth of the Constitution, in consultation with former Prime Minister Raila Odinga, former President Mwai Kibaki appointed Dr Willy Mutunga in June 2011 following a competitively and publicly conducted interview under the new Constitution.
Mutunga implemented reforms at the Judiciary and in his bid to avoid a crisis that could have risen if the August 2017 election was to be held without a substantive office holder, he opted to retire from office early.
Had Mutunga who left office at the age of 69 waited to retire at 70, JSC was to remain with only two months to fill the vacancy.
His deputy Kalpana Rawal left office two days ahead of Mutunga on June 14, 2016 following the decision by the Supreme Court to uphold both the High Court and Court of Appeal confirmation that judges should retire at 70.
Without a deputy to hand over to following the retirement of DCJ Rawal, Mutunga handed over the office to Justice Mohamed Ibrahim who was the senior most in the Supreme Court.
However, Justice Ibrahim could not declare Mutunga’s seat vacant due to lack of a law giving him the mandate to do so, a situation that led to the then JSC secretary Lydiah Achode take the responsibility. This she did pursuant the Judicial Act, 2010 and immediately advertised for the position.
The law only provides that in the event of the removal, resignation or death of the CJ, the DCJ shall act as the CJ for a period not exceeding six months pending the appointment of a new CJ in accordance with the Constitution.
Judicial Service Act was amended in 2011 to include that if the DCJ is unable to act in the absence of CJ, the senior most judge in the Supreme Court shall act as the CJ and shall assume the administrative duties of the Chief Justice until the position of Chief Justice or Deputy Chief Justice is filled.
It is after Mutunga’s term that 10 candidates applied to replace him, a race that Maraga won and was appointed by President Uhuru Kenyatta as the 14th CJ of Kenya and the second under the current Constitution.
The Constitution provides that a CJ shall retire from office after serving a term of 10 years or on reaching the age of 70.