Feeble judicial team unable to plan for Mutunga succession

The Judicial Service Commission (JSC) could be thrown into a last-minute rush to find a successor to Chief Justice Willy Mutunga who had announced he would be retiring next month.

Dr Mutunga has announced that he will retire on June 16, which is just six weeks away and a year earlier, “to save the country from the intense lobbying that would likely make choosing my successor difficult” in an election year.

But a constitutional provision barring the filling of the position before it falls vacant, coupled with a court order stopping the JSC from advertising the position while Deputy CJ Kalpana Rawal’s case on retirement age is pending, means JSC’s hands are tied.

Judgment on the Justice Rawal case is due on May 27.

SPLIT COMMISSION

Besides, a pending petition for the removal of four Supreme Court judges - Justices Rawal, Mohammed Ibrahim, Jackton Ojwang’ and Njoki Ndung’u - for alleged misconduct is still pending before the JSC since October 2015 and has divided the commission down the middle along Jubilee and Cord lines.

The JSC, which is the administrative wing of the Judiciary, is composed of Dr Mutunga as chairman, Deputy Chief Justice Rawal, Dr Justice Smokin Wanjala representing the Supreme Court, Justice Mohamed Warsame, representing the Court of Appeal and Justice Aggrey Muchelule representing the High Court.

Other members are Prof Tom Ojienda and Florence Mwangangi representing the Law Society of Kenya (LSK), Attorney-General Githu Muigai, Chief Magistrate Emily Ominde, Public Service Commission chairperson Margaret Kobia, Mr Kipng’etich arap Korir Bett and Ms Winfred Waceke Guchu. 

Chief Registrar of the Judiciary Anne Amadi is the secretary to the commission.

The petition filed by former Law Society of Kenya CEO Apollo Mboya wants the JSC to recommend to President Uhuru Kenyatta to suspend the four judges for withdrawing their services in solidarity with suspended colleague Philip Tunoi, who is also challenging his retirement age.

A second charge against the judges relates to the decision of the judges to pronounce themselves on the matter of the retirement age for judges in their ruling on the election petition by Kanu Secretary-General Nick Salat.

They did so even though the subject of retirement age of judges was not under consideration in the election petition.

Dr Mutunga had differed with his colleagues for introducing extraneous matters that were not before them for determination in the ruling that the Supreme Court rendered on October 19, 2015 dismissing the petition by Mr Salat challenging the election of Bomet Senator Wilfred Lesan.

TEMPERS FLARE

A JSC insider told Sunday Nation that a JSC meeting two weeks ago ended prematurely as tempers flared over how to deal with the petition.

The camp allied to Jubilee is reportedly afraid that if the JSC was to recommend the suspension of four judges, only Justice Dr Smokin Wanjala, who is not their candidate, would remain as the senior-most Supreme Court judge who can act until Dr Mutunga’s successor is named.

In addition, the Jubilee wing’s preferred candidate would not be in a position to apply for the vacant CJ post once it is advertised.

“Some commissioners walked out of the meeting, leaving their files on the table, as tempers flared,” the source said.

The Jubilee-allied commissioners are, therefore, proposing that the JSC only takes internal administrative action against the four judges by reprimanding and reminding them of their constitutional obligations.

“Some members want to protect the judges and are recommending that an administrative action of reprimanding them would suffice because some of the four judges are supposed to apply for the CJ post and one or two have even been promised the position by the Jubilee wing,” the JSC insider said.

With Dr Mutunga unrelenting on his decision for early retirement, the anti-tribunal wing of JSC has also been arguing that the Supreme Court will be constitutionally paralysed since the minimum number of Supreme Court judges that can hear a case is five.

And where there is a matter of great national importance, like a presidential election petition, the full bench of seven has to be constituted.

Dr Mutunga is said to be documenting his time as the head of the judiciary and has approached some of his close associates to help him with the relevant material, signalling that he will not be going back on his retirement decision.

CORD SYMPATHISERS

Meanwhile, the perceived Cord sympathisers within have stood firm that the JSC must not bend the rules for political interests.

They hold that the allegations against the four judges are so serious that an administrative action would be a slap on the wrist.

They have stood their ground that the JSC recommends to President Kenyatta to suspend the judges and form a tribunal to look into their conduct and integrity.

The petitioner, Mr Mboya, also maintains that the misconduct charges against the four judges are sufficient grounds for their removal.

“The fact that JSC has not disposed of these petition puts us in a precarious situation in that the Supreme Court judges have irreparably misconducted themselves and requires a full reconstitution,” said Mr Mboya.

A guarded Chief Registrar of the Judiciary, Ms Amadi, declined to comment on the behind-the-scenes intrigues. “JSC has prepared and it is finalising its plan which will be released to the public soon.”