The Judicial Service Commission on Friday signalled a clear departure from the past by nominating two outsiders to become Chief Justice and Deputy Chief Justice.
Dr Willy Munyoki Mutunga, an academic and one-time political detainee, was proposed for CJ and Ms Nancy Makokha Baraza, a founder of the International Federation of Women lawyers (Fida), was nominated to the post of deputy CJ.
In preferring the two over Court of Appeal judges and High Court judges who had applied for the same posts, the JSC gave clear signal that it would no longer be business as usual in the Judiciary.
Immediately after the announcement, the commission forwarded the names of the two to the President and Prime Minister for further processing in accordance with the Constitution.
The two principals will, after consultation, forward the names to Parliament for approval.
JSC acting chairperson Christine Mango said they had picked renowned reformers, a man and a woman of impeccable record, integrity and sound legal grounding.
“We have picked people who will reform the justice system and our Judiciary. They are a man and a woman in whom we as the Judicial Service Commission have full faith, confidence and trust,” said Prof Mango.
She said the commission was looking for candidates who will lead by example, persons of great depth of legal and constitutional learning, whose integrity is impeccable and beyond reproach, and who have a record of independence and cannot be influenced by political pressure.
“We wanted someone who can provide leadership to the courts and has shown passion and zeal to help Kenyans realise the dream in the new Constitution, especially its values of equality, justice, fundamental rights and freedoms; and a commitment to the rule of law,” explained Prof Mango.
She said that the commission was satisfied with the choice of Dr Mutunga due to his academic record and struggle for reforms in the country’s political history.
“He is a former law school lecturer, a former chairman of the Law Society of Kenya and a renowned reformer in the political struggle of our country. He has also practised law for over three decades,” said the acting JSC chairperson.
In their choice of Ms Baraza for the post of Deputy Chief Justice, the commission cited her academic record and legal reforms activism. Ms Baraza has a Masters degree in law and is presently a PhD student at the University of Nairobi.
“She is the vice-chairperson of the Kenya Law Reform Commission and former chairperson of FIDA. She is an advocate of the High Court and practised law for over three decades,” explained Prof Mango, adding that in the two candidates, the Judicial Service Commission had seen the attributes they were looking for when they started the interviews two weeks ago.
Other candidates interviewed for the post of Chief Justice were Court of Appeal judges Riaga Omollo, Samuel Bosire, Alnasir Visram and Joseph Nyamu.
From the High Court were Justices Kihara Kariuki, Msagha Mbogholi, Mary Ang’awa and Kalpana Rawal. Also interviewed was ICTR judge Lee Muthoga.
In a conversation with Saturday Nation before the interviews began, two members of the Judicial Service Commission described the list of applicants as “embarrassing” and indicated that the scales were in Dr Mutunga’s favour.
“The post is for Dr Mutunga to lose,” one of them said.
“Some members of the Bench have not appreciated the reality that the new Constitution gave birth to a new order which requires new hands and ideas.”
A member of the commission who spoke to Saturday Nation on condition of anonymity said the two candidates were picked by consensus.
Majority of the JSC commissioners scored Dr Mutunga higher percentage to the other candidates.
“I am humbled by the decision of the JSC. If the President, the Prime Minister and Parliament endorse the JSC decision I shall serve Kenya patriotically. I seek prayers of all Kenyans,” said Dr Mutunga.
“I wear my ear ring not because of my sexuality but spirituality. There is no way I can remove this ear ring even if I become the Chief Justice. If am told I must remove it to get the job of Chief Justice I will say keep your job,” Dr Mutunga said.
Dr Mutunga suffered the denial of bail by the courts following his arrest over the possession of seditious material on July 10, 1982, when he was a lecturer at the University of Nairobi.
The Saturday Nation of July 17, 1982, reported the third denial of bail and described the charge that Dr Mutunga had been found in the possession of a banner with messages against the government of Daniel arap Moi.
The banner allegedly had the messages; “J.M. Day Solidarity”, “Don’t be fooled” and “Reject those Nyayos”.
The attempted coup against President Moi’s government, also seen as marking a turnaround in his administration, came two weeks after Dr Mutunga had been denied bail for the third time.
The nomination of a possible chief justice outside the current Bench, was seen as a possible indictment of the sitting judges.
“It is a vote of no confidence on our judicial officers especially those at the top of the Judiciary and a victory for reformists,” said Apollo Mboya, the Law Society of Kenya executive officer.
For the position of Deputy Chief Justice, five other candidates were interviewed. They were Justices Roselyne Nambuye, Mary Kasango, Hannah Okwengu, Martha Koome and lawyer Gladys Shollei.
Dr Mutunga is a respected figure in legal and civil society circles. He was among the group of Young Turks including Prime Minister Raila Odinga, Paul Muite, and James Orengo who pressed Mr Moi for democratic space in the country.
A former political detainee, Dr Mutunga has taught law at the University of Nairobi and chaired the Law Society of Kenya. He is currently the regional head of the Ford Foundation and has served as director of the Kenya Human Rights Commission.
During his interview for the post, Dr Mutunga said if appointed he would ensure complete independence of the Judiciary from the other arms of the government.