Judicial Service Commission retreat sets stage for picking new Chief Justice
Chief Justice Willy Mutunga (centre) addresses the media outside Supreme Court on February 5, 2016 after receiving report from the special Judicial Service Committee on bribery allegations against Justice Philip Tunoi. The Judicial Service Commission on May 6, 2016 left for a two-day retreat in Naivasha Mutunga’s retirement top of their agenda. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP
What you need to know:
- Dr Mutunga has announced that his decision to take an early retirement is “to save the country from the intense lobbying that would likely make choosing my successor difficult” in an election year.
- As part of the Mutunga succession battles, two rulings are expected from the courts between May 26 and 27.
- On May 26, the High Court will render its decision on the cases filed by JSC and LSK challenging the president’s power to pick one candidate out of three for approval as Chief Justice.
The Judicial Service Commission (JSC) on Friday left for a two-day retreat in Naivasha with Chief Justice Willy Mutunga’s retirement top of their agenda.
The decision to head out for a retreat was arrived at during Thursday’s full JSC meeting that had been convened to kick-start the process of advertising the CJ’s position once it falls vacant next month.
Dr Mutunga is expected to voluntarily retire on June 16 having been the first CJ to be appointed competitively in June 2011. His retirement next month comes a year ahead of schedule.
Dr Mutunga has announced that his decision to take an early retirement is “to save the country from the intense lobbying that would likely make choosing my successor difficult” in an election year.
The JSC members left for Naivasha on Friday “to work on the advertisement for the Chief Justice’s position,” a JSC insider told Sunday Nation.
The commission, which is the administrative wing of the Judiciary, is composed of the CJ as its chairman, Attorney General Githu Muigai, Public Service Commission (PSC) chairperson Margaret Kobia, Supreme Court judge Smokin Wanjala, Court of Appeal’s Justice Mohamed Warsame, and High Court’s Justice Aggrey Muchelule.
Other members are Law Society of Kenya (LSK) representatives Prof Tom Ojienda and Ms Mercy Mwarah Deche, Chief Magistrate Emily Ominde, Kipng’etich arap Korir Bett and Winifred Guchu. Chief Registrar of the Judiciary Anne Atieno Amadi is the secretary to the commission.
But JSC is not expected to advertise the office of the CJ immediately “because there is no vacancy”.
“We can only advertise once the vacancy falls available when the CJ leaves on June 16. We will then give a time frame for receiving applications, follow the process to do the interviews which will very much be public anyway. We will advertise the names in the newspapers and get feedback from the public then eventually recommend a name to the President and the Parliament for appointment,” a JSC member told Sunday Nation.
As part of the Mutunga succession battles, two rulings are expected from the courts between May 26 and 27. On May 26, the High Court will render its decision on the cases filed by JSC and LSK challenging the president’s power to pick one candidate out of three for approval as Chief Justice.
FORWARD THREE NAMES
Both JSC and LSK challenged the amendment of Judicial Service Act which requires JSC to forward three names to the President instead of one as previously provided. The cases were heard by Justices Richard Mwongo, Mumbi Ngugi, Weldon Korir, George Odunga and Joseph Onguto.
LSK appointed four lawyers to represent it in the case, namely Nzamba Gitonga, Prof Ojienda, Michael Muchemi and Peter Wanyama.
On May 27, the Court of Appeal will make a judgement on the contentious matter of the retirement age of judges.
The Court of Appeal ruling will be keenly watched as it is all that now stands between Deputy Chief Justice Kalpana Rawal’s appointment as acting CJ.
This is after the JSC on Tuesday declined a request for removal of four Supreme Court judges, including Justice Rawal for misconduct. Former LSK boss Apollo Mboya had also petitioned for the removal of Justices Jacton Ojwang’, Mohammed Ibrahim and Njoki Ndung’u.
Once Dr Mutunga retires on June 16, Lady Justice Rawal will remain as the senior most judge in the Judiciary. She will, therefore, serve as the country’s next Chief Justice in acting capacity until a replacement to the CJ is made.
But JSC lawyer Ahmednasir Abdullahi argued that Justice Rawal’s ascendance in case she wins the retirement age case will not be automatic.
“There is nothing like an acting Chief Justice. It is not there in the Constitution,” said Mr Abdullahi. However, section 5(4) of the Judicial Service Act provides that “In the event of the removal, resignation or death of the CJ, the Deputy CJ shall act as the Chief Justice for a period not exceeding six months pending the appointment of a new Chief Justice.”
