The politics of the Judicial Service Commission (JSC) are central to the ongoing problems Deputy Chief Philomena Mwilu is facing. The new Constitution significantly changed the composition of the JSC, increasing membership to 11, including the Chief Justice who has a seat because of his leadership of the Judiciary, while each tier of the courts elects its own representative.
Thus, each of the Supreme Court and the Court of Appeal elects a representative while the representation of the High Court and the magistracy is tied up so that if one level elects a woman, the other must elect a man.
As the voice of the organised legal profession, the Law Society of Kenya (LSK) elects two members to represent the profession. The President has both direct and indirect roles in the composition of the JSC, appointing the two members who represent the general public, and also the Attorney General who, by virtue of office, sits on the JSC. The President also appoints a Public Service representative to the JSC.
In 2010, Mwai Kibaki appointed Christine Mango and Anthony Muheria as the first public representatives to the JSC. Neither was particularly close to the establishment.
By contrast, the Jubilee leadership has taken a different approach, appointing people that are more clearly aligned to their political interests. When Mango retired in 2013, the Jubilee leadership prevailed on Rev Samuel Kobia, whom Kibaki had appointed to replace Muheria, to resign. This created two positions for the Jubilee leaders to share.
President Uhuru Kenyatta appointed party strategist, Winnie Guchu, to his slot, while his deputy William Ruto rewarded the relatively unknown Kipng’etich Bett. Smokin Wanjala was the Supreme Court representative on the JSC when he applied to replace Willy Mutunga as Chief Justice. He then resigned from the JSC, leaving a vacancy that Mwilu eventually filled. When Emily Ominde’s first term on the JSC expired, attempts were made to replace her with an establishment-friendly person.
The plan badly backfired and instead contributed to her re-election for a second term. The same script played out when Justice Mohammed Warsame completed his first term early this year.
Perceived political support for his rival consolidated support for Warsame who was re-elected with a landslide. The same scenario played out with regard to the election of the next President of the Court of Appeal. Again, external meddling consolidated support for Justice William Ouko. The sting in the tail, however, came when the establishment now insisted that Warsame needed to be vetted before taking office again, even if he had not been vetted when first elected and nobody else has. Still unresolved, the matter has contributed to the leadership paralysis in the JSC.
The unresolved problems of Justice Njoki Ndungu are a factor in what is going on in the JSC. She received a formal reprimand from the JSC following a complaint by lawyer Apollo Mboya against her and Justices JB Ojwang and Mohammed Ibrahim, triggered by their refusal to participate in court proceedings, in solidarity with beleaguered former DCJ Kalpana Rawal.
The JSC continues to face strong pressure to rescind its reprimand against Ndungu, who has also filed a case in court based on the same issue. The fact that the JSC has a mind of its own in a matter of this nature cannot be a source of political endearment.
The Jubilee leadership has reduced the positions for the two public JSC representatives to be seats occupied during its pleasure. Kobia was the first to resign when prevailed upon. When she left the JSC after she became a Cabinet Secretary. Margaret Kobia was replaced by a former clerk of the National Assembly, Patrick Gichohi. It is at that point that the appointment of Bett was also revoked, replaced by former Cabinet Secretary Felix Kosgei.
It is doubtful that the President can revoke the appointment of a commissioner to an independent entity. The Jubilee strategy has been to maximise influence in the JSC, as a way of guaranteeing that its interests are protected. While Kibaki used his appointing role to identify people that were regarded as capable of serving the public interest, the Jubilee leadership has been unabashed about how it uses this same power, making appointments that project its influence.
In the Judiciary, whose various courts are well represented in the JSC, the Jubilee approach has created resentment and backlash, especially because has tried to meddle in the internal elections of Judiciary affecting JSC representation.
Whatever the accusations against her, Mwilu is regarded as core in the bulwark against an all-consuming external threat to the Judiciary. Warsame is viewed the same way. The rough treatment against the two is contrasted with the easy path which political favourites in the Judiciary walk, with the establishment often going out of its way to ease any difficulties they may face. The difficulties against Mwilu are also a study in the contrasting treatment between political outsiders and favourites.
- The writer is Executive Director KHRC. firstname.lastname@example.org