Nzamba’s chances of clinching the post of Chief Justice

What you need to know:

  • In public life, Nzamba Kitonga is defined as the former chair of the Committee of Experts that led Kenya to attaining the Constitution in 2010.
  • But he has held other important public responsibilities.

Nzamba Kitonga, one of the six candidates that have been shortlisted for interview for the position of Chief Justice, is an advocate of the High Court and a long-term legal practitioner. In public life, Mr Kitonga is defined as the former chair of the Committee of Experts that led Kenya to attaining the Constitution in 2010. But he has held other important public responsibilities.

For a period of 10 years, until 2015, Mr Kitonga was the president of the Comesa Court of Justice, where he had taken over from Justice Akilano Akiwumi. The court is the judicial organ of the regional economic community, and is charged with settling disputes arising under the Comesa Treaty between Comesa member states, the secretary general, individuals and corporations. Its judges serve on a part-time basis.

Mr Kitonga has played many roles in the governance of the legal profession both in Kenya and outside. As part of this, he served as a member of the Council of the London-based International Bar Association, regarded as the global voice of the legal profession, from 1997 to 2003 and as a member of the Council of the Law Society of Kenya of which he was elected chair for two years in 1997. Thereafter he was elected vice president and later president of the Arusha-based East Africa Law Society. Mr Kitonga also served in the Council of the Pan African Lawyers Union and as a member of the Council of Legal Education and the Legal Sector Reform Task Force. He was also an alternate chair of the Advocates Disciplinary Committee, deputising the Attorney General.

In addition, he has served in regular public boards including the NGO Statutory Disciplinary Tribunal and as chair of the State Corporations Appeal Tribunal.

SPECIAL TASKS

Mr Kitonga has performed special tasks including in the Commission of Inquiry into the Goldenberg Scandal, where he was vice chair.

He is currently a UN monitor to the genocide trials in the Rwandan Supreme Court and was also recently appointed chair of the South Sudan Constitutional Review Commission.

As evidenced by the many responsibilities that he has handled, it is clear that Mr Kitonga enjoys a high level of confidence among his colleagues in the legal profession.

In 2004, the Law Society inducted Kitonga to its roll of honour in a ceremony presided over by the then Vice President, Moody Awori. The Society’s roll of honour was established to give recognition to members of the legal profession, both judges and lawyers, who had offered distinguished service in the advancement justice.

What are the chances that Kitonga will be the next Chief Justice?

A factor that might work against him is that he is competing against judges and is therefore an outsider. While he has had his own judicial experience, he is currently not and has never been a member of the Judiciary. If the dynamics in the JSC favour an insider, this may work to his disadvantage. It is possible, however, that the various factions in the JSC will fail to agree on a common internal candidate. In such a case, Mr Kitonga may become the compromise choice.

In a recent article in the Nairobi Law Monthly, lawyer Ahmednasir Abdulahi attempted an analysis of the politics that will govern the choice of the next Chief Justice. According to Mr Abdulahi, “a number of candidates from Central Kenya who were salivating over the office of the Chief Justice were, in no uncertain terms, told not to apply by their kinsmen in power.” This, he says, “explains why no candidate from central Kenya will be interviewed for the office of the CJ”, adding that Kikuyu candidates “fell victim of a noxious ethnic calculus designed by their brethren in power.”

STOPGAP CHOICE

According to Abdullahi, the plan within Jubilee is that the next Chief Justice will be a stopgap, a person that will serve for a maximum of four years and then retire, so that President Kenyatta can pick another Chief Justice towards the end of his second term in office. At that time, the President’s choice of Chief Justice will be from the Mt Kenya region.

Mr Kitonga, in his early 60s, would outlive the President if he was appointed the next Chief Justice. Kitonga would therefore suffer a disadvantage if a scheme of this nature was to be put in place.

Unlike a large number of lawyers in private practice who do not easily get the opportunities for public service, Mr Kitonga has combined a career in private practice with significant participation in public life. Arguments about a lack of public experience which would usually disqualify many lawyers in private practice from consideration for Chief Justice cannot convincingly be applied against Mr Kitonga. Conversely, he has arguably had more leadership experience than many of the candidates he will be competing with for the position. Further, Mr Kitonga’s professional standing is validated by the recognition that his peers in the private profession have given him. If his credentials are considered in isolation of the unpredictable political factors, Mr Kitonga offers a strong candidature for Chief Justice.