Plot to influence Chief Justice succession

Recent dramatic events in the Judiciary are part of a bigger scheme to influence the choice of the next Chief Justice after Dr Willy Mutunga retires mid this month, investigations by Sunday Nation have revealed.

Deputy Chief Justice Kalpana Rawal is expected to remain in office after her Supreme Court colleague Justice Njoki Ndung’u stayed a Court of Appeal decision that all judges should retire at the age of 70, intensifying the succession battles that now threaten the credibility of the Judiciary.

Justices Rawal and Philip Tunoi insist they should retire at the age of 74 as they were hired under the old constitution. The Judicial Service Commission (JSC) had earlier advertised the position of deputy chief justice, opening the process to forces that wanted to influence the hiring of her replacement. 

A mediation attempt by the Law Society of Kenya to settle the retirement controversy has fallen flat and the Supreme Court now has the final say.

Two powerful forces in and outside the Judiciary are said to be engaged in a high-stakes game to influence who will occupy the top positions.

One side comprises a top legal official in government, an influential Jubilee MP and a supreme court judge who goes out of the way to implement instructions and leak secrets for counter-strategies to be taken.

The other side is composed of at least two prominent lawyers of senior counsel level and a supreme court judge.

While those carrying out the Jubilee agenda want a Judiciary insider they consider a safe pair of hands, the opposing forces believe an outsider — like Dr Mutunga — would be best suited to ensure the independence of the Judiciary that they believe is under threat.

A source in the Judiciary, who spoke in confidence, said some judges and magistrates have been sucked into the succession war. 

“Judges want an insider, not someone who will learn on the job,” said a source who also claimed that Dr Mutunga failed to fit into the “traditions” of the institution and relied heavily on communicating through e-mail to run the Judiciary.

“Judges are traditional and conservative. They also like protocol, something Justice Mutunga is not keen on,” he said. 

The battle for control, which now targets the composition of the Supreme Court with an eye on a possible presidential petition next year, appears to have been going on in the recruitment of the all-powerful JSC members and in passing laws in the National Assembly.

One of the routes seen as a way to influence the choice of a new CJ was an amendment to the JSC Act that required that the President be given three names of prospective office holders to choose from instead of one. Last month, the High Court declared it unconstitutional.

The JSC has announced that the process of appointing Dr Mutunga’s successor will end in October.

Some of the names being bandied about to succeed him include Attorney-General Githu Muigai, Supreme Court Judge Smokin Wanjala, Court of Appeal Presiding Judge Kihara Kariuki, High Court Presiding Judge Msagha Mbogholi and High Court Judge Isaac Lenaola.

Prof Muigai, despite his strong credentials, may be disadvantaged by ethnic balance and those privy to the intrigues surrounding the matter say the government will be under criticism for having the President, Speaker of the National Assembly and head of the Judiciary from the same central Kenya region. This may also rule Justice Kihara out of the race.

Dr Wanjala, though relatively new to the Judiciary, may have to work hard behind the scenes to gain clout should he decide to apply for the position. His name has not been dragged into the recent controversies in the Supreme Court.

Justice Mbogholi, from the Coast, would be the ideal candidate. However, his black mark is that he was named in the infamous radical surgery of the Judiciary, though he fought back and was cleared.
Justice Lenaola, a brilliant legal mind from Samburu, has often been considered a future chief justice. Friendly, sharp and amiable, Justice Lenaola has the respect of lawyers for his ability to clear case backlog in record time.

When he was appointed in 2011, Dr Mutunga beat a field that included then Court of Appeal judges Riaga Omollo, Samuel Bosire, Alnashir Visram and Joseph Nyamu.
Others were Justices Kariuki, Mbogholi, Mary Ang’awa, Rawal and Mr Lee Muthoga.

Prof Tom Ojienda, a JSC member, acknowledged there could be people plotting to influence the succession. 

“There are many views on this matter. There will obviously be interests but the JSC will find the best candidate. It is not looking for any particular person because we are yet to see the names of applicants,” he said.

“The JSC will be looking for an ideal candidate who will ensure judges focus on their core duties and that’s hearing and deciding cases and that judiciary transformation continues. We will not want a retrogressive CJ.”

The coming days will see the retirement matter being decided but the Supreme Court is in for some fireworks.

The JSC, through its lawyers, has indicated it will not have three of the Supreme Court judges — Justices Ndung’u, Mohamed Ibrahim and Justice JB Ojwang’ — hear the suit as they have previously been involved in the matter.

If the case is not finalised by June 16, when Dr Mutunga is expected to retire, Justice Rawal could be made acting Chief Justice, putting the Judiciary in an awkward position.

However, if the case goes against her, Justice Mohamed Ibrahim, who is third in rank, will automatically become acting Chief Justice.