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Kenya's judiciary gazettes vacancies, sets the stage for Mutunga succession battle

By Nzau Musau | June 18th 2016
Retired C.J Willy Mutunga. PHOTO: FILE

NAIROBI: The Government Printer finally published three vacancies of Supreme Court judges, further sealing the fate of retired judges Kalpana Rawal and Philip Tunoi.

Yesterday’s official publication of the vacancies of Chief Justice, Deputy Chief Justice and one Supreme Court judge followed protracted back and forth exchanges between the Judicial Service Commission (JSC) and the Government Printer since Tuesday.

Former Chief Justice Willy Mutunga, who left office on June 16, signed the June 15 dated publication for the two positions formally held by Rawal and Tunoi. Judiciary Chief Registrar Anne Amadi signed the CJ’s position in the publication dated June 17, 2016.

“Pursuant to Section 3, Part II, First Schedule of the Judicial Service Act (No.1 of 2011) the Judiciary declares vacant the position of Deputy Chief Justice of the Republic of Kenya,” the notice effectively announcing Rawal’s exit stated. According to top sources at JSC, the technical people at the Government Printer had refused to print the notices on Wednesday citing “firm instructions” from the Government Printer himself. The Government Printer, however, denied issuing any instructions when Amadi reached out to him.

No word

“We went back to the Government Press but the technical guys there restated their earlier position. The Government Printer then went under and we were unable to reach him the whole of Wednesday yet his guys could not proceed without his word,” the source said.

The tune at Government Press then changed. The officers claimed to have been waiting for some clearance by the Office of the Attorney General. The AG himself is a member of the JSC which was pushing for the publication of the notice.

When AG Githu Muigai was pushed by his JSC colleagues to clear the way, he reportedly said he was in no way involved in the matter. However, when challenged to then call the Government Printer and issue instructions to print it, he was said to have been non-committal. “We then had to write a formal demand letter for the publication of the notice of vacancies after what turned to be a game of musical chairs. We also proceeded with the newspaper adverts,” the source added.

For avoidance of doubt, the notice published yesterday states that the tenure of office would be “as per Article 167 of the Constitution.” The said article says all judges shall retire at 70 years but may elect to retire earlier upon attaining the age of 65.

For appointment to replace Mutunga, Rawal and Tunoi, candidates must have a law degree from a recognised university or be an advocate of the High Court of Kenya or possess an equivalent qualification in a common-law jurisdiction. They must possess at least 15 year experience as superior judge, distinguished academic, judicial officer, legal practitioner or other relevant legal field. They must also be of high moral character, integrity and impartiality.

Key requirements

Qualifications for the three vacancies are essentially the same. Their responsibilities, however, differ with the CJ taking most duties and judge the least.

“In addition, applicants must demonstrate a high degree of professional competence, communication skills, fairness, good temperament, making good judgments in legal and life experiences and commitment to public and community service,” the publication said. When the Government Printer dilly-dallied in printing the notice on Wednesday and Thursday, Amadi ran the notices in the dailies on Thursday and yesterday for the position of CJ.

Although no formal applications have been made so far, a number of names have been floated in the past for the three positions.

For the post of the CJ, names floated include AG Muigai, President of the Court of Appeal Kihara Kariuki, High Court Judge Isaac Lenaola, law scholar Makau Mutua, High Court Judge Joel Ngugi and Court of Appeal judge Philip Waki.

For the position of Deputy CJ who necessarily must be a woman if the CJ is a man, current Supreme Court judge Njoki Ndung’u is being considered a strong candidate.

Njoki has, however, been dogged by controversy in the last few weeks and JSC has already made a finding of misconduct against her and reprimanded her. Others said to be favourites include Appellate judges Martha Koome, Wanjiru Karanja and Fatuma Sichale, former Vice Chair of the defunct Committee of Experts Atsango Chesoni and former FIDA Executive Director Joyce Majiwa.

Majiwa was in the final shortlist of five women selected by JSC to replace former Deputy CJ Nancy Baraza in 2013. Apart from Rawal who sailed through, others in the list of five were Cabinet Secretary Raychelle Omamo, Senior Counsel Lucy Kambuni and advocate Phoebe Nyawade.

For the vacant position left behind by Tunoi, almost all Court of Appeal Judges are automatic candidates if they choose to apply.
The CJ applications will close on July 7 while those of DCJ and judge will close on July 6. Candidates have less than a month to make up their mind and apply. They must include samples of their professional writings, declare any involvement in political activity, declare any criminal record they may have and declare their income and liabilities.

They must get clearance from the Kenya Revenue Authority, Higher Education Loans Board, Law Society of Kenya, Directorate of Criminal Investigations, Advocates Complaints Commission, EACC and a recognised Credit Reference Bureau.

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