Details suggest JSC was divided on choice of Chief Justice

Members of the Judicial Service Commission led by Professor Margaret Kobia (in background) interview Court of Appeal Judge Alnashir Visram for the position of Chief Justice at the Supreme Court building in Nairobi on August 29, 2016. PHOTO | DENNIS ONSONGO | NATION MEDIA GROUP

What you need to know:

  • Well-placed sources indicate that when members of Judicial Service Commission (JSC) retreated to The Hague in the Netherlands to deliberate on the outcome of the interviews conducted in Nairobi, two factions emerged.

  • One faction was leaning towards choosing Court of Appeal Judge Alnashir Visram as next Chief Justice while the other wanted to choose High Court Judge Mbogholi Msagha.
  • Lack of unanimity among four establishment-leaning commissioners cost them influence within the JSC.

Fresh details have emerged suggesting the Judicial Service Commission (JSC) was sharply divided on the choice of the next Chief Justice, with indications that the announcement of Justice David Maraga as the unanimous nominee was made to stop a section of the commission from re-opening the issue for fresh consideration.

This comes as Justice Maraga awaits parliamentary approval following his vetting by the Justice and Legal Affairs Committee of the National Assembly on Tuesday.

Well-placed sources indicate that when members of the JSC retreated to The Hague in Netherlands to deliberate on the outcome of the interviews conducted in Nairobi, two factions emerged. One faction, associated with the political establishment, was leaning towards Court of Appeal Judge Alnashir Visram, while the other, also perceived to be within the establishment, wanted High Court Judge Mbogholi Msagha. Lack of unanimity among the four establishment leaning-commissioners cost them influence within the JSC.

However, another faction of commissioners is said to have favoured Justice Smokin Wanjala. To undermine his selection, the perceived pro-establishment commissioners introduced adverse allegations against him, forcing his backers to abandon that choice.

Against these polarised positions, the JSC eventually picked Justice Maraga, who was then announced as the unanimous choice. Sources indicate that two of the establishment-leaning commissioners remained opposed to Justice Maraga even at that point. But since they were now greatly outnumbered, there was nothing they could do.

On returning to Kenya, the sources indicate that senior Jubilee politicians were uncomfortable with the choice and pushed for the selection of a different favoured candidate.

The pressure, according to an insider, led a section of JSC members to announce Justice Maraga as the nominee on Thursday, September 22, catching those who expected the announcement to be made the following day by surprise.

ROUNDLY CRITICISED

In fact, Law Society of Kenya representative Tom Ojienda was roundly criticised by some JSC members for jumping protocol and disclosing to the media the nomination of Justice Maraga before acting chairperson Margaret Kobia had formally broken the news.

“All our mobile phones had been kept away by security and we had been sworn to secrecy and silence. We do not know at what point a media house was tipped of our presence here or why one of us allocated himself the role of spokesperson,” a JSC member was reported to have said.

Contrary to the impression created that Justice Maraga was the best candidate in the interview, the sources indicate that his selection was based on a number of factors.

These included a straight-forward and conservative personal life, which meant he had no known scandal, and the fact that as a member of the relatively small Kisii community, the nomination would be easy to sell at the political level.

Sources indicate that although they did not originally support his selection, a wing of the Jubilee coalition soon realised that in an election year they could use this to their political advantage. That wing has since presented the choice of Justice Maraga as evidence of the spoils the Kisii community can get if they support the Jubilee Government in the coming polls.

But those opposed to the CJ nominee are said to be determined to stall the process, including raising objections before the National Assembly. One issue relates to a decision that Justice Maraga made in the criminal case involving the 2008 murder of former Ainamoi MP David Kimutai Too.

TRIAL JUDGE

Justice Maraga was the High Court trial judge. In the case, police constable Andrew Moeche Omenga was charged with the killing in Eldoret of the newly-elected MP together with his companion, a policewoman, in an alleged love triangle.

The murder of Mr Too at the height of the post-election violence raised ethnic passions and triggered fresh fighting.

The accused, one of his victims and most of the witnesses were police officers, a fact that ensured many internal contradictions in the evidence, as it seemed that two opposing sets of witnesses had set out to present different accounts of what transpired at the crime scene.

Justice Maraga convicted Omenga of manslaughter rather than murder, having found that both of his victims were also armed, a fact that led him to fear that they would shoot him if he did not shoot first. Justice Maraga’s findings were criticised at the time.

The petition in Parliament against Justice Maraga was presented by Mr Emmanuel Korir, a parliamentary aspirant, and Mr Tom Biegon, an aide of Ainamoi MP Benjamin Langat — the late Too’s younger brother and a Jubilee MP.

Mr Korir urged the National Assembly to reject the nomination of Justice Maraga.

“The humble petitioners pray that the National Assembly does not approve his nomination to become Chief Justice and compels Justice Maraga to make an apology to the family of the deceased, the people of Ainamoi Constituency and Kenyans at large for his indiscretion and failure to uphold the Constitution,” reads the petition.

Justice Maraga is awaiting a decision by MPs sometime next week, although all indications are that he will sail through and get the formal appointment.