How to know who will not become the next Chief Justice

Conflict of interest concerns arising from my work for Chief Justice Willy Mutunga have kept the Judiciary off-limits for this column in the past five years.

Dr Mutunga’s early retirement this week opens the door for me to be mealy-mouthed about the Judiciary again – especially about his succession, in which the President will have little or no say.

Significantly, Dr Mutunga’s departure creates a vacancy in the Judicial Service Commission, which is expected to interview and choose his successor. The commission’s vice-chair, Prof Margaret Kobia, a respected professor of administration and chair of the public service commission, will be chairperson until a Chief Justice is found. Thus, the JSC will pick the Chief Justice, Deputy Chief Justice and a judge of the Supreme Court when its membership is 10. Should the tradition of deciding by consensus not stand, the commissioners will vote for the best woman or man.

Of the original commissioners who picked Dr Mutunga for the Chief Justice’s job five years ago, only one – Chief Magistrate Emily Ominde – remains on board. Most of the original JSC members who served up so much television drama during the interviews are all happily retired. At the time, the commission was praised for setting the standards in the public interviewing of judges and had a well-won reputation for standing up to the Executive.

It is not right to say that Dr Mutunga’s replacement has been a long game that has been in the works for at least three years.

Even when the JSC was altered by retirement, President Uhuru Kenyatta loved the commission so much that he appointed a tribunal to investigate six of its members: Justice Mohammed Warsame, Ms Ominde, Law Society representatives Florence Mwangangi and Ahmednasir Abdullahi as well as Dr Samuel Kobia and Prof Christine Mango. It was only saved by the gavel in the High Court.

The Law Society soon after replaced Mr Ahmednasir with Prof Tom Ojienda and Ms Mwangangi with Ms Mercy Deche in elections; while the President picked Ms Winnie Guchu and Mr Kipng’etich Bett to take Dr Kobia and Prof Mango’s places.

Amendments to the law to have the JSC present three names for CJ or DCJ so that the President could make a pick were struck down by the High Court. The President loves the independence of the Judiciary and is careful to prevent the commission from making uninformed decisions. For example, he held off swearing into office 14 judges they had nominated for over a year. Again, the High Court has found that he has no role in the selection of judges.

The membership of the JSC picking the next Chief Justice and Deputy Chief Justice could be altered downwards if some of their number throw their hats into the ring.

Two members of the JSC – Attorney-General Githu Muigai and Supreme Court Judge Smokin Wanjala – have been mentioned as possible candidates for the Chief Justice’s job. If both pursue this path, the commission could be down to eight or nine members.

Prof Muigai and Dr Wanjala are both 56. Should they choose not to seek the CJ’s job and a youthful person is picked, they would have to wait up to 10 years for another chance – and then only to serve for four years.

The JSC nominee will ultimately be presented to the National Assembly for vetting and approval. If the person the JSC chooses fails to sail on the wings of the Jubilee majority in Parliament, no one can blame the President. After all, his own attempt to appoint Dr Monica Juma as Secretary to the Cabinet was rebuffed, leaving the office vacant to date.

Meanwhile, the President has been so heartbroken over Dr Mutunga’s early departure that he has been unable to muster words to say a fitting goodbye.

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