Intrigues dominate shortlisting of candidates for next judiciary chief

The Judicial Service Commission is sharply divided on how to handle the controversy that has arisen over shortlisting of candidates for the office of chief justice.

The commission announced that it had received 14 applications for the position and it shortlisted six candidates who would be invited for interview.

Among those who did not make it to the shortlist were Prof Makau Mutua, Supreme Court judge Jackton Boma Ojwang and former director of the Ethics and Corruption Commission Justice Aaron Ringera.

Those shortlisted are Justices Alnashir Visram, Smokin Wanjala, Roselyne Nambuye, David Maraga, Mbogholi Msagha and Nzamba Kitonga.

Two suits have been filed against the ongoing recruitment.

In the first suit, a lobby group, Trusted Society for Human Rights Alliance, sued claiming that the recruitment was shrouded in secrecy and was unconstitutional.

The second suit was filed by lawyer Arnold Magina, who wants the interviews and selection stopped on grounds that it was flawed.

The lawyer wants more scrutiny of the qualifications of the applicants regarding experience, academic excellence and integrity.

He says the requirements by the commission on the posts were not legal but arbitrary.

Commission acting chairperson Margaret Kobia said that the two cases have been consolidated and are before Nairobi High Court George Odunga.

“So we wait on the outcome but the interviews will start on August 29,” she said.

Also, the Law Society of Kenya formally wrote to the Commission asking that it makes clear the basis on which it shortlisted the candidates.

Prof Kobia said they had replied to the letter “and that is why they are quiet”. She said the law forbids the commission from disclosing confidential information.

While there has been no public complaint about the omission of Justices Ojwang and Ringera from the shortlist, it is understood that the political establishment is unhappy that the two will not be invited for interview.

They may quietly be hoping that a miracle happens that will make commission reconsider.

In the wake of the controversy that arose after it became clear that Prof Mutua was not shortlisted, the commission met to discuss the option of re-opening the shortlisting.

ALL IS WELL
Sources indicate that some commissioners were willing to re-open the shortlisting, arguing that this would appease all those who had complained about being excluded. However, others opposed for different reasons.

One of the reasons is that other than the political establishment, which may not be comfortable with Prof Mutua as chief justice, he also has powerful enemies inside the commission who have been working to block his path for reasons not connected with the establishment. 

In the light of the court suits, some commissioners have argued that these have now provided a face-saving way out of the problems caused by the shortlist, and that they should concede the cases and allow for a fresh start.

The omission of Prof Mutua’s name seemed to have caused concern in certain circles.

Narc Kenya leader Martha Karua remarked that the commission appeared to have relied on extraneous considerations in refusing to shortlist Prof Mutua.

However, Prof Mutua’s opponents in the commission have remained adamant that no concessions will be made and that the commission must defend itself.

The Judicial Service Commission has however denied that there are divisions among the members.

A commissioner who requested not be named told Sunday Nation that “we have heard such claims but it is all hogwash. If there were divisions as claimed by mainly civil society groups who have always wanted to influence the process, the public would have taken note long ago”.

In November 2015, Prof Mutua - who is also chair and co-founder of the Kenya Human Rights Commission - wrote an article titled Attorney-General has been misused and should resign in a weekly column in one of the daily newspapers.

SWING VOTES

He is said to have described the Attorney-General (Githu Muigai) as displaying “slavishness to Kikuyu political princes” despite Prof Muigai remaining a marginal figure in the country’s political circles, unable to find his way to the center of power.

In the article, Prof Mutua advised Muigai that rather than endure continued humiliation, he should resign from his position.

At a function of the Kenya Human Rights Commission which took place the day after Prof Mutua’s article was published, an angry Prof Muigai responded by accusing non-governmental organisations of behaving like “teenagers” who are unhappy with everyone around them, and accused them of acting sanctimoniously to the country’s problems.

In the midst of different opinions in the commission, much has been happening behind the scenes.

The intention of both sides — the political establishment and those opposed to them — is try and win over the two Law Society of Kenya representatives in the commission, Prof Tom Ojienda and Ms Mercy Deche, who are seen to have the swing vote in the commission’s decision.

The Judicial Service Commission is composed of nine members. They are Prof Kobia, Prof Muigai, representatives of the Court of Appeal and High Court Justices Mohamed Warsame and Aggrey Muchelule respectively, Prof Ojienda and Ms Deche, Chief Magistrate Emily Ominde, Kipng’etich arap Korir Bett and Winifred Guchu.

Even without the two law society representatives, members aligned to the political establishment have an upper hand.

However, the fear is that without properly “persuading” the law society representatives, the political establishment may lose out on the person who succeeds retired Chief Justice Willy Mutunga.