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Mwilu takes charge as jostling for Chief Justice seat begins

By Paul Ogemba and Everlyn Kwamboka | December 13th 2020 at 00:00:00 GMT +0300

Chief Justice David Maraga with his deputy Philomena Mwilu at Kahawa, Kiambu County after launching new court. [Samson Wire, Standard]

The Judicial Service Commission (JSC) is set to commence the search for a new Chief Justice after Justice David Maraga begun his terminal leave pending retirement in January.

Big names within the judiciary and legal circles are being touted as possible candidates in an exercise that is expected to be more intense than in 2016 given the political interest attached to the seat in presidential elections petitions.

According to legal experts, the stakes are so high that it will not be surprising to see camps of people within and outside the judiciary seeking to control the process.

First woman

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On Friday, Chief Justice David Maraga made history by handing over the mantle in managing the third arm of government to his female deputy as the process to replace him starts.

This makes Justice Philomena Mwilu the first woman to be in charge of the Judiciary, a position she is to hold in an acting capacity.

“I hereby authorize you to act as Chief Justice of the Republic of Kenya and perform all duties and functions of the Chief Justice from December 12, 2020 until my retirement on January 12, 2021,” the CJ stated in his appointing letter.

Immediately his terminal leave ends, the CJ said he will formally hand over to Mwilu to continue acting as the CJ for a period not exceeding six months or until his successor is appointed in accordance with the Constitution.

The letter was copied to the JSC, Judiciary Chief Registrar Anne Amadi, the President of the Court of Appeal William Ouko and judicial officers heading other courts.

Section 5 (4) of the Judicial Service Act, 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 holder in accordance with the Constitution.

In her acting capacity, Mwilu is expected to perform a wide range of judicial, administrative and ceremonial duties provided for under the Constitution.

In 2016, when former Chief Justice Willy Mutunga retired, Justice Mohammed Ibrahim became the court’s president in an acting capacity.

Immediately after Mwilu’s appointment, Law Society of Kenya (LSK) President Havi Nelson tweeted his support for her.

“I wish her the very best as she serves notwithstanding unwarranted heightened attacks from operatives in the executive. The rule of law must prevail,” he said.

Observers argue that a petition by activist Okiya Omtatah filed last week to stop Mwilu from acting as CJ was just the first signal of the intrigues expected to dominate the big race to succeed Maraga.

Havi said they are aware of the jostling and lobbying for the big post, but that lawyers will not support anyone who will not fit in Maraga’s shoes, citing his courage to nullify a presidential election.

Possible candidates

According to Havi, those being touted as possible candidates to succeed Maraga must have the mettle to take on the executive and defend judicial independence with zeal.

During the last selection, Supreme Court judge Smokin Wanjala narrowly missed out to succeed Mutunga, coming second behind Justice Maraga in the JSC interviews.  

There are reports of jostling within the JSC where three commissioners are said to be angling to succeed Maraga. Several senior Court of Appeal Judges are also said to be interested. US-based law scholar Mutua Makau, who was trounced by Maraga in the last interview, is set to lead big names from outside the judiciary for the race to become the third Chief Justice under the 2010 Constitution.

Former Attorney General Githu Muigai, touted as a possible contender, has said he is not interested in the seat.

“I have no such ambition of becoming the CJ. I served the society and given my dues as the AG am no longer interested in coming back to the public service. I enjoy very much being a professor of law,” he said.

Makueni Senator Mutula Kilonzo Jnr said what matters most are not the big names but a CJ who can take on the executive and help build on the courage created by Maraga.

“The fact is that Maraga followed the law in all the major decisions that he made and stood firm in defending his position. We want a person who is a jurist, can help develop good jurisprudence and cannot be muzzled by the executive,” he said.

Lawyer Thomas Letangule, a former commissioner at the Independent Electoral and Boundaries Commission, said the JSC has to consider many things and not just academic qualifications and experience of being a judge.

“They should go for a CJ with high emotional intelligence and good temper. We don’t want someone who will create animosity with the other arms of government,” he said.

Other legal experts argued that factors like regional balancing could come into play in choosing Maraga’s successor.

In a previous interview, senior counsel Ahmednassir Abdullahi said the Supreme Court must reflect the face of Kenya and represent its diversity by not having more than one judge from one region.

Another consideration likely to dominate the search for Maraga’s successor is whether to appoint from within or outside the judiciary.

Chief Justice Judicial Service Commission David Maraga
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