Intrigues behind the selection of new CJ to succeed Mutunga as head of Judiciary

The process for the selection of the next Chief Justice has finally ended with the nomination of Justice David Maraga, who is a judge of appeal.

By all indications, the nomination has been received well and it is likely that the National Assembly will approve and have him appointed as the next chief justice.

Because the Judicial Service Commission took the unusual step of making public the score that each candidate obtained during the interview, it is now known that Justice Maraga, the unanimous choice of all the interviewers, obtained a score of 84 per cent. His nearest competitor, Justice Smokin Wanjala, obtained a score of 74 per cent while US-based law professor, Makau Mutua, ranked third with 70 per cent.

The low scores of retired Justice Aaron Ringera and Supreme Court Judge Jackton Ojwang’ reveal the frame of mind that dominated deliberations on who should be the country’s next leader of the Judiciary.

For Justice Ringera, who also applied to become chief justice in 2011, this surely was a final putdown. The retired judge had not even been shortlisted and was interviewed because the High Court ruled that the applications that it had initially rejected should be reviewed.

It is unlikely he will be keen to apply for another judiciary job in the near future.

Prof Tom Ojienda, a member of the Judicial Service Commission, explained the considerations of picking Justice Maraga. Justice Maraga was selected because of his long-service as a judge and his conciliatory personality. Other commissioners were also quoted as saying that Justice Maraga’s qualities would be needed in addressing the present Supreme Court’s toxic climate.

If Justice Maraga was selected because he can bring reconciliation in the divided court, it is natural that the converse was the reason why Justice Ojwang’ was rejected.

He has been a major protagonist in the court’s internal feuds, something that has strained relationships with colleagues in the judiciary. This animosity was barely concealed during his heated interview.

If interpersonal relationships played such a key role in the selection, it is difficult to explain how this fits in with Justice Wanjala. 

Like Justice Ojwang’, he, too, is a member of the Supreme Court and is also involved in the problems that it faces. The only difference is that Justice Wanjala occupies the same side as most members of the commission.

Is it possible that the only reason for the difference in scores between the two judges is because the commission was playing favourite with one?

After failing to make the shortlist and after enduring a long interview, Prof Mutua still ranked high in the circumstances. How is this to be explained?

No candidate had a more profound effect on the interview process than Prof Mutua. Arguably, his initial omission was the material reason why there was so much outrage over the shortlist which was then reviewed after a court order. 

Prof Mutua’s participation not only raised the quality of the process but also its credibility. It seems that the reason he was ranked so highly, was because it needed to placate him to avoid another backlash, while at the same time making the point that Prof Mutua should not get the idea that he was the closest alternative to Justice Maraga.

In this regard, the only reason the scores were made public was because this is the only way the commission could account for its processing of Prof Mutua’s interview. Having had a big performance but missed the job, the absence of some kind of explanation would have affected the credibility and even the choice of Justice Maraga.

It may also be argued that Prof Mutua had an effect on the eventual choice. It is known that the commission was divided down the middle between government-leaning members and judiciary-leaning ones. 

Of the candidates interviewed, Prof Mutua was the only one on the left, itself a reason for the rancour that followed the failure to shortlist the don.

Justice Ojwang’ and retired Justice Ringera were perceived to be the most pro-establishment candidates. Feeling unable to nominate Prof Mutua, the commission would also have had to drop the two candidates seen as in the opposite extreme.

The result was that consensus was built around a more centrist candidate, which largely explains why, unusually, Justice Maraga became a unanimous choice.

SELECTING BEST CANDIDATE

Viewed from this point, the commission scores can only be contrived. It is unlikely that nine people assessing a large number of candidates over a wide range of issues could have consistently scored Justice Maraga highest. 

It is more likely that, at some point, the commission put aside a structured approach to selecting the best candidate and that there followed hard amorphous negotiations, which landed Justice Maraga as the compromise.

Although not a ball of fire, Justice Maraga is a decent choice. This explains the cautious optimism that has greeted his selection and the fact that there is no substance to the few objections that have surfaced.

While his centrist views are the reason he was selected, his personal integrity, gracious character, and status as a judiciary insider are his strongest credentials.

Faced with a choice between a chief justice that would serve the country and one that would serve the judiciary, the commission has gone for the latter. As a result, while Justice Maraga is perfect for the Judiciary it will remain to be seen if he will also be good enough for the country.

In this regard, the biggest concern is whether Justice Maraga has the sophistication to operate in a larger context that is highly politically and socially significant.

As a judge without special leadership responsibilities, Justice Maraga has been flying under the radar, and has done well. This will change when he becomes chief justice. The General Election, which is likely to be closely-contested, is on the horizon and the role of the judiciary will come under scrutiny, together with Justice Maraga’s leadership.

These interviews brought into the open previously hidden schisms in the judiciary which the commission is not necessarily playing above. As older candidates, Justices Ringera and Ojwang’ as well as Alnashir Visram and Mbogholi Msagha, are not likely to get another chance.

Age is still on the side of Mr Nzamba Kitonga, Justice Wanjala and Prof Mutua and they may get another chance in future.

[email protected]