Fight to control JSC linked to Maraga succession intrigues

The battle to control the appointment of the next Chief Justice after Mr David Maraga retires is taking shape as behind-the-scene machinations reveal attempts to lock out people perceived to be hostile to the government from taking up seats at the Judicial Service Commission (JSC).

RETIREMENT

Officially, Mr Maraga will be leaving the Judiciary in 2021 having attained the mandatory retirement age for judges, which is 70 years, but already jostling to influence the appointment of his successor has started.

A year before Mr Maraga’s retirement, another Supreme Court judge, Justice Jackton Ojwang’, will leave as will one or two other apex court judges.

FACTIONS

With the historic nullification of the August 8, 2017 presidential election still fresh in the minds of many, key political and civil society factions are not leaving anything to chance in trying to get a say in a reconstituted Supreme Court.

CONTROL

The execution of the plot, according to Judiciary insiders and lawyers, is to determine who sits in the JSC. “There is a wider scheme to ensure that they have control on how and who the JSC appoints as Chief Justice after Maraga retires,” lawyer Nelson Havi told the Sunday Nation. Mr Havi has been representing Prof Tom Ojienda in his battles with the Kenya Revenue Authority (KRA) over tax clearance.

VETTING

The executive has stalled the re-election of Court of Appeal Judge Justice Mohamed Warsame to JSC insisting that he undergo parliamentary vetting. Despite the High Court having quashed this push, he is yet to be gazetted.

According to Judiciary insiders, who spoke in confidence, Mr Warsame’s “fierce independence streak” is not viewed favourably.

RE-ELECTED

While Justice Warsame is still waiting for his name to be gazetted, Mr Maraga recently swore in three new members to JSC.

They are Attorney General Paul Kariuki, Public Service Commission representative Patrick Gichohi and two members representing the public in JSC — Prof Olive Mugenda and Felix Koskei. Justice Warsame was re-elected in March after garnering 16 votes against four for Justice Wanjiru Karanja, his competitor in the bid to sit at the JSC.

LEANINGS

Meanwhile, the forthcoming Law Society of Kenya (LSK) election for the male representative to the JSC has opened up debate on the leanings of various candidates.

Prof Ojienda, who is defending his seat, got a reprieve when the High Court ordered KRA to give him a tax compliance certificate. LSK nomination rules require candidates to obtain clearance from KRA among other institutions.

NOMINATION

The High Court had also directed LSK to clear Prof Ojienda “without a tax compliance certificate … if (KRA) fails to comply within three days.” KRA is appealing the court decision.

The nomination period for candidates for LSK representative to the JSC closes tomorrow. Ahead of the deadline, four lawyers have submitted their nomination papers.

OPPOSITION

They are Prof Ojienda, former board chairman of Independent Policing Oversight Authority Macharia Njeru, Charles Ongoto, who lost in the Jubilee nominations for West Mugirango parliamentary seat in 2017, and former LSK council member Alex Gatundu.

Though official campaigns are yet to start, Mr Njeru is seen as presenting the most formidable opposition to Prof Ojienda’s bid to serve a second term.

RECRUIT

The election will take place in February next year and the winner’s term will run for five years beginning April 6, 2019.

This means that whoever wins will be sitting in the JSC that will recruit the next CJ.

LSK POLL

The forthcoming LSK election would have passed without much noise except that this election is of immense significance for the people who have started scheming for 2021 when JSC embarks on recruiting the successor to Mr Maraga.

Lawyer George Kithi says the country cannot afford to ignore the forthcoming LSK election.

DECISIONS

“We were slow in realising how certain positions are powerful in the new dispensation,” Mr Kithi said.

He said the country has realised that the JSC is critical and its decisions are almost final. Since there is very little room to stop such JSC decisions, the only way is to stop it at the point of interviews and that requires having people who can do your bidding,” explained Mr Kithi.

SHORTLISTED

Mr Kithi’s assertion is supported by the 2016 attempts by Jubilee Party to amend the Judicial Service Act to require that three shortlisted candidates be forwarded to the President for him to pick one as Chief Justice and three others for him to pick one as Deputy Chief Justice.

AMENDMENTS

Jubilee pushed the amendments after realising that the President has no room to manoeuvre once JSC submits a single name. With the amendment having been felled by the courts, focus shifted to control the recruitment at the point of interviews.

PHILOSOPHY

“Control of the Judiciary is very important whether it is in America, in Kenya or any other State because you want people who subscribe to your philosophy. How do you get such people? By influencing their appointment at the point of the interviews,” Mr Kithi added.

THREAT

For Prof Ojienda’s supporters, including Mr Havi, the attempts to use KRA to block him from contesting is simply because he is viewed as a threat to plans to determine who takes part in recruiting the next Chief Justice and the reconstitution of the Supreme Court.

INDIVIDUALS

“There are three commissioners who are not wanted at JSC because some individuals who are keen to ensure they have control of the appointment of the successor to Chief Justice Maraga consider them as a threat to their plans. You can clearly see the attempts to deal with each of them,” said Mr Havi.

ALLOCATION

Since the nullification of the presidential election on September 1, 2017, the Judiciary has gone through testing times with threats being directed at them and their families.

Besides, there has been a squeeze on the budgetary allocation to the Judiciary to a point that sometime this year their medical cover was stopped for lack of payment. For now, jostling continues.