Intrigues in fight for top judiciary jobs

The race to fill the three Supreme Court positions will likely boil down to perceived conformists versus independent-minded individuals, with the former enjoying State support.

The Judicial Service Commission (JSC) on Friday published the names of the applicants for the positions for the Chief Justice, the Deputy Chief Justice and a Supreme Court judge. 

Fourteen candidates applied for the position of the CJ, 15 for DCJ and 21 for Supreme Court judge.

The Sunday Nation has learnt that influential individuals in the Jubilee government want to use this opportunity to do away with Dr Willy Mutunga’s legacy that often embarrassed the Executive and Legislature by overturning some key constitutional and judicial decisions.

The ruling Jubilee is also ready to use Parliament to frustrate the JSC until “their” candidate is picked to succeed Dr Mutunga, and Supreme Court judges to replace the retired Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi.

“Jubilee will use its numbers in Parliament. But we hope we don’t get there,” a senior Jubilee politician, who spoke on condition of anonymity, said.

But lawyer Gitobu Imanyara said any machinations will be met head-on. “A Judiciary under any one of the rumoured preferred candidates would be a disaster,” he said.

Among those in the race are Justice Jackton Ojwang’ and Smokin Wanjala of the Supreme Court, Court of Appeal judges Alnashir Visram, David Maraga and Roselyne Nambuye and High Court judge Mbogholi Msagha.

The Jubilee side is said to prefer working with a Judiciary insider and not an outsider like Dr Mutunga.

There is also a perception among some quarters in government that there should be ethnic balance given that the Executive (President Kenyatta) and the Legislature (National Assembly Speaker Justin Muturi) are headed by people from the Mt Kenya region.

“It is instructive that neither the Supreme Court judge Justice Njoki Ndung’u, the President of the Court of Appeal Justice Paul Kihara Kariuki nor the Attorney General Githu Muigai have applied. That speaks a lot of what State House wants,” a Judiciary insider said.

ASSESSING APPLICATIONS

Among the 14 applicants for the CJ job, Washington-based law Prof Makau Mutua is seen as independent minded.

Other applicants are Mr Nzamba Kitonga who chaired the Committee of Experts that came up with the 2010 Constitution, a commissioner with the Commission for University Education Lucy Wanja Julius, Principal Administrative Secretary in Deputy President’s Office Daniel Wambura, lawyer David Mwaure Waihiga, Dr Isaac Rutenberg, currently a senior lecturer and director of Centre for Intellectual Property and Information Technology Law at Strathmore University and Kongani Udoto Kongani Paul Andrew.

The race for the DCJ and a Supreme Court judge is also open.  

“Ninety-five per cent of the applicants are just pretenders to the throne. Some of them are government projects just put there to muddy the waters for certain applicants. They are trial balloons the government has sent to deceive the public,” lawyer Ahmednasir Abdullahi said.

Mr Abdullahi, a former member of JSC, says at the end of the day, although there are 14 candidates for CJ position, the contest will narrow down to three or four “while the rest will just be flower girls”.

In a press release by acting JSC chairperson Margaret Kobia on Friday, the commission announced that they will meet on Monday to open the applications.

“The commission will review applications for completeness and conformity with the necessary requirements within 14 days,” the statement said.

After opening the applications, the Commission will have 21 days to conduct reference checks to review, verify and supplement information provided by applicants.

“The commission will also communicate to all of the applicants’ referees and former employers who will be asked to comment on the applicant’s candidature under the criteria set out in the law,” Prof Kobia said, adding that further reference checks will be done before shortlisting.

The scheming by the Executive started in March 2015 when former JSC member Rev Samuel Kobia was persuaded to step down to allow President Kenyatta and his deputy to fill his, and Prof Christine Mango’s position by former TNA official Winnie Guchu and Kipng’etich arap Korir.

SWINGING BOTH WAYS
Prof Mango’s term in the JSC had expired a year before the two appointments were made by edging out Rev Kobia to enable the Jubilee principals to make double appointments.

The intention, according to JSC insiders, was to tilt the balance towards Jubilee. And during February’s Law Society of Kenya elections, the government reportedly spent huge sums of money to campaign for “friendly” candidates.

At the elections, Ms Mercy Mwarah Deche replaced Florence Mwangangi. The changes have since left a divided JSC, with those perceived to be anti-government now in the minority following the exit of Dr Mutunga.

With Supreme Court representative Dr Smokin Wanjala also applying for the Chief Justice job, it further depletes the non-conformists who now consist of Court of Appeal Justice Mohamed Warsame, High Court Justice Aggrey Muchelule and Chief Magistrate Emily Ominde.

The other side of the divide has the current acting JSC chairperson Margaret Kobia, Prof Muigai, Ms Guchu and Mr Korir.

The LSK representatives in the commission, Prof Tom Ojienda and Ms Deche, have been swinging in between the two sides.

“The LSK representatives, though they try to portray themselves as the middle ground, often side with the pro-government team,” said an insider.

Age will also play a key factor with the two major political coalitions said to be trying to ensure that the next CJ does not stay for long.

“An older Chief Justice and a fairly younger DCJ, the latter who will be put there with a promise to be the natural successor would be a perfect match,” said a Judiciary insider.