After the intrigues that characterised shortlisting of candidates to succeed retired Chief Justice (CJ) Willy Mutunga, the Judicial Service Commission (JSC) finally starts interviewing shortlisted candidates for the top three vacant judicial positions on Monday.
Besides filling the position of CJ, the month-long exercise will also recommend to President Uhuru Kenyatta for appointment of two other names for Deputy Chief Justice and a judge of the Supreme Court.
The latter offices fell vacant following the retirement of Deputy Chief Justice (DCJ) Kalpana Rawal and Justice Philip Tunoi after a long court battle over retirement age for judges who were serving before the 2010 Constitution was promulgated.
The interviews will start more than two months after the three judges exited the corridors of justice. Dr Mutunga retired on June 16, two days after the Supreme Court declined to suspend an appeal court ruling on Justices Rawal and Tunoi’s retirement case because of no quorum to hear the matter.
For the position of CJ, JSC has shortlisted six candidates – five among of whom are serving judges while the sixth has held senior public offices in the past. Court of Appeal judge Alnashir Visram will be the first to face the JSC on Monday from 9 am at the Supreme Court buildings in what is expected to be a forum open to the public.
On Tuesday, High Court judge Msagha Mbogholi takes the stand, followed by Court of Appeal judge David Maraga on Wednesday.
The fourth candidate as per the JSC schedule is Mr Nzamba Kitonga, the only non-judge among the shortlisted candidates. He will be followed by Justice Roselyn Nambuye on Friday and Justice Smokin Wanjala on Saturday.
From Tuesday, September 9, 13 candidates eyeing the office of DCJ will face JSC. The DCJ interviews will run until September 15 before the turn of candidates for Supreme Court judge which will be done from September 26 to October 7.
MANOUVRES AND LEGAL SUITS
The interviews start against a backdrop of behind-the-scenes manoeuvres and legal suits, both designed to frustrate or influence the exercise.
A Nakuru-based lobby, Trusted Society for Human Rights Alliance, lawyer Arnold Magina filed a suit seeking to nullify the exercise.
Another case which is also still pending before the Court of Appeal is by the Executive through the Attorney-General Githu Muigai seeking to reinstate amendments to the Judicial Service Act that were nullified by the High Court. The offensive amendments provided that the JSC submits three names to the President who will then pick one amongst them.
Besides the court cases, there have been claims of deep divisions within the JSC itself with one side dubbed the reformists who are believed to be enjoying the backing of civil society groups. On the other side are commissioners who owe their allegiance to State House which is said to be keen to influence the exercise.
“The commission is very united. We know we carry a very heavy responsibility and there is a lot of political pressure but we are committed to get the best. We will be guided by the constitution and the relevant laws,” JSC chairperson Prof Margaret Kobia told the Sunday Nation.
The JSC chairperson added that the exercise that the commission will be carrying out from Monday is designed to be “a deep conversation and discussion with the shortlisted candidates in order to get the country the most qualified persons for positions of CJ, DCJ and judge of the Supreme Court.”
“We will be looking for persons with excellent legal minds, social and interpersonal skills, a strategic manager and a leader. The interviews will be done as spelt out in the Constitution and the Act,” she said.
Prof Kobia spoke to Sunday Nation after JSC’s Naivasha retreat that started on Monday. The retreat had been organised to finalise preparations for the interviews of the shortlisted candidates for the vacant positions.
It is reported that the commissioners used the retreat to go through the petitions and comments filed against the shortlisted candidates besides “other logistical matters.”
WAR OF ATTRITION
The petitions are sticking points in the interviews. It is understood that there are petitions against each of the shortlisted candidates, with claims that it had turned into a war of attrition with some candidates sponsoring petitions against their competitors.
Among the petitions include one each against Justice Wanjala and Mr Kitonga which were filed by a blogger-Abraham Mutai through Havi & Company Advocates. In addition, Sunday Nation has established that a prominent lawyer has also filed a separate petition against Justice Visram.
In regards to Justice Wanjala, the petitioner Mutai claimed that he was unfit to hold the office of the CJ because as the Deputy Director of the now defunct Kenya Anti-Corruption Commission (KACC), he failed to investigate and prosecute influential persons named in corruption scandals.
In addition, there are claims that KACC then did not address the Goldenberg and Anglo-leasing scandals of 2006 among others.
The other allegation against Justice Wanjala relate to the Public Accounts Committee report which implicated him among other JSC commissioners over impropriety of Sh1.1 billion.
Justice Wanjala was then a member of JSC’s Finance and Administrative Committee.
For Mr Kitonga, his time as the vice chairman of Goldenberg Commission has been raised as it is claimed that the commission failed to summon and interrogate crucial culpable people including retired President Daniel Moi and former Finance ministers during the Goldenberg scandal, the late Prof George Saitoti and Musalia Mudavadi.
Meanwhile, in a petition filed anonymously against Justice Visram, the petitioner who is believed to be a prominent lawyer accuses him of having interfered with a Sh14.2 million matter in the Court of Appeal by causing it to be delayed.
The petitions against the remaining three candidates still remain unknown. Regarding the petitions, Prof Kobia said each candidate will be given adequate time to express himself or herself and also seek clarifications.
“We have set up a professional environment so that they can express themselves and enable us get the best candidates,” she said. Though Prof Kobia would not get into details, it is established that the candidates have been notified of the petitions and asked to respond to them.