The National Assembly Justice and Legal Affairs Committee is mulling over a proposal to hire a Chief Justice and independent office holders at least six months before the exit of current occupants.
Committee Vice-Chairman Otiende Amollo said this will help avoid cases of such top offices being without substantive holders for long.
Citing the case of the Auditor-General, where the appointment of Ms Nancy Gathungu came a year after the exit of her predecessor, Mr Edward Ouko, Dr Amollo faulted what he said was a misinterpretation of the law on succession in independent offices.
“There are people who misinterpreted the law to mean that you cannot initiate appointment until the holder of the office leaves. There is nothing unconstitutional about planning and setting up plans for one’s exit as long as you are not pushing the current holder out,” Dr Amollo told the Nation.
The Independent Offices (Appointment) Act, 2011, which guides the appointment and exit from office of independent and constitutional office holders, states that within seven days of a vacancy in such of an office, the President shall advertise in at least two newspapers, declaring vacancies.
This provision that recruitment can only start once the office falls vacant has been criticised in the past for hampering certain key offices whose holders wield powers that no other person can have unless they are substantive office holders.
This law, Dr Amollo states, however, has been misinterpreted.
“In adopting a progressive way of interpreting the Constitution, what we need to ask ourselves is not if the Constitution expressly states it, it is: Does the Constitution bar you from recruiting one’s successor before they leave office? The answer is no,” he posed.
In case of Chief Justice David Maraga, who will attain the retirement age of 70 years in January 12, 2021, such recruitment of his successor, according to Dr Amollo’s proposal should have started.
Mr Maraga has said he will take his terminal leave in November.
In his parting shot, the former Auditor-General had called on MPs to amend the necessary laws to allow the recruitment of such key State officers to start months before the incumbent’s term expires so that there will be no void in the office. “If this process does not take shape, it might force us to compel it in law,” Dr Amollo said.