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Plenty at stake in Kenya’s search for next CJ

By Kamau Muthoni | January 12th 2021 at 00:00:00 GMT +0300

A police officer removes a number plate from the Chief Justice’s official car at the Supreme Court yesterday. [Collins Kweyu, Standard]

Dynamics in the hunt for the country’s next Chief Justice will make the process one of the most interesting recruitment drives in recent times.

With David Maraga’s exit, the next CJ will most likely swear in the country’s fifth president next year, and would therefore play a decisive role in adjudicating election disputes, should there be any.

Already, next year’s race is shaping up to be a hot contest, going by present political activities.

Kenya had three CJs under the 2010 Constitution – the late Evan Gicheru, Willy Mutunga and Maraga. If the trend is anything to go by, there are high chances that the next man or woman might be an outsider.

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Both Gicheru and Maraga rose through the ranks within the Judiciary, while Mutunga came from outside.

Judicial Service Commission (JSC) Deputy Chair Mercy Ndeche said the commission will reconvene this week and issue a vacancy notice within 14 days.

Gender rule

The two-thirds gender rule leaves the post open to either gender. Currently, there are two women judges at the Supreme Court – Acting Chief Justice Philomena Mwilu and Justice Njoki Ndung’u.

Should they apply for the position, the two would have an advantage over other female contenders based on their experience as judges.

On the flip side, and based on the trend since 2010, their chances of clinching the top seat may be an elusive ambition.

For one, Mwilu has been haunted since 2018, while Ndung’u’s fairly younger age may see her shunned on the basis of her having better chances in the future.

Justice Mohammed Ibrahim is closer to the seat going by his age than other contenders, but he has not enjoyed the best of health in the past, which saw him miss out on hearing the 2017 presidential petition. His other Supreme Court colleague, Justice Smokin Wanjala, applied for the CJ post last time and may try his luck again.

Justice Isaack Lenaola is currently the youngest judge at the Supreme Court. He meets the experience mark, is from a minority group and has experience in international courts.

There is also another vacancy in the top court after Prof Jackton Ojwang’ retired. The Judiciary has not found his successor. Court of Appeal President William Ouko is touted to be likely to take up the seat, but he may decide to train his sights on the CJ post.

“That is a rumour until I put in my application. I have not reflected on it,” Ouko told The Standard.

The issue of the tribe is likely to crop up. Currently, the Supreme Court has persons from the Kamba community (Mwilu), Luhya (Wanjala), Kikuyu (Njoki), Samburu (Lenaola) and Somali (Ibrahim), making the chances of any person from these communities clinching the top position rather slim.

Another person fronted as a possible candidate for CJ is senior lawyer Prof Tom Ojienda. He, however, said he has not considered going for the top seat and wants to continue pursuing his passion in private practice.

Inner workings

Attorney General Justice Kihara Kariuki is also said to be a contender. He has the advantage of being both an insider and knowing the workings of the Judiciary.

He may also be seen as an outsider as he left the third arm of government to become the government’s chief legal advisor. However, Ndung’u’s presence at the top court may disadvantage him.

Former AG Githu Muigai may be interested. He has worked with the government and knows where the shoe pinches. He would bring legal, institutional and personal experience to the seat.

Prof Makau Mutua, an outsider, may also give the seat a second shot.

Former Mandera Central MP Abdikadir Mohamed has recently crowned a senior counsel. Having steered the 2010 constitutional process, he is ranked highly as a stable hand in high stakes games. He went into private practice in 2017 after serving as a constitutional advisor to the presidency. He has not expressed interest in being CJ yet but may turn out to be a strong candidate if he does.

In the previous interviews, High Court Judge Mbogholi Msagha went for the top seat. His age and experience in the Judiciary also make him a top contender this time around.

Both the Executive and the Judiciary could lose depending on who takes over from Maraga. Under Maraga’s reign, the Judiciary suffered what pundits called a ‘revisit’ by the State after annulling the 2017 presidential election.

In President Uhuru Kenyatta’s own admission, the government equally suffered from court orders and injunctive orders.

While the majority in the Judiciary would want a man or woman who will defend the independence of the institution to the bitter end, the Executive would want a candidate is in tune with its agenda.

Chief Justice David Maraga Willy Mutunga
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