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Why massive changes are coming to Kenyan courts soon

Monday June 20 2011


Mr Justice Willy Mutunga, who was on Monday sworn in as Kenya’s 14th Chief Justice with Lady Justice Nancy Baraza as the first ever Deputy Chief Justice, will preside over massive transformation of Kenya’s Judiciary.

Both judges have gone through an unprecedented appointment process, as dictated by the new Constitution, which involved open interviews of the candidates, endorsement by the President and the Prime Minister, and approval by the National Assembly.

The public interviews and the confirmation proceedings by the National Assembly are new processes that have not been witnessed in Kenya before.

Using the rigorous process

Under the previous constitution, the President, acting alone, was responsible for the appointment of the Chief Justice, an appointment which took effect without any form of confirmation. Dr Mutunga is the first Chief Justice to be appointed using the rigorous process.

The new Constitution also created the position of Deputy Chief Justice. A former Chair of the Law Society of Kenya, Dr Mutunga has been the regional representative of the Ford Foundation while Ms Baraza, a former chair of the Federation of Women Lawyers - Kenya, has been the vice-chair of the Kenya Law Reform Commission.


In their positions as Chief Justice and Deputy Chief Justice, Dr Mutunga and Ms Baraza will become members of the Supreme Court.

The Supreme Court of seven judges is a newly created tier of the Judiciary and will be the highest court in Kenya, above the Court of Appeal which, under the previous constitution was the highest court.

Dr Mutunga will be the president of the Supreme Court and Ms Baraza will be his deputy.

Dr Mutunga will also be the chair of the Judicial Service Commission, which has operated without a chair since the retirement in February of Chief Justice Evan Gicheru.

The transition in the Judicial Service Commission, represented by the taking over of Dr Mutunga, is just one of the many changes taking place in the judiciary.

The JSC has already accommodated additional membership signified by the two representatives of the Law Society of Kenya, who include the vocal Ahmednasir Abdullahi and Ms Florence Mwangangi and two representatives of the High Court and the magistracy, represented by Mr Justice Isaac Lenaola and Ms Emily Ominde respectively.

Other new members of the Commission are the two presidential appointees, Ms Christine Mango and Bishop Anthony Muheria. The latter, however, resigned his appointment soon after the recruitment process started.

The entry of Dr Mutunga will not only provide a recognisable headship, but also complete the membership of the commission.

The JSC will, however, lose a long serving member, Attorney General Amos Wako who retires in August. Because of his longevity, Mr Wako’s influence in the affairs of the JSC has been immense.

His exit, which follows on the retirement of Justice Gicheru is part of the massive transformation that judicial leadership is set to undergo in the coming days.

There are other changes the new Constitution has introduced in the judiciary, and whose effects are yet to clearly set in.

The new Constitution redefines the role of the Chief Justice who, as a member of the Supreme Court, will sit in judgement only in that court.

Under the former constitution, the Chief Justice was a member of the Court of Appeal, then the highest court, and also the High Court, and was the only judge who was a member of two courts.

The Judiciary will need to get accustomed to this change, whose exact implications will emerge eventually.

Unsuccessful applicants

The new Constitution also introduces leadership in both the High Court and the Court of Appeal.

The High Court is to be headed by the Principal Judge, a position that is filled by election by members of that court, while the Court of Appeal is to be headed by the President of the Court, also an elective position.

Mr Justice Mbogholi Msagha has already been elected as Principal Judge, while Mr Justice Riaga Omolo was elected the president of the Court of Appeal.

In addition, Mr Justice Omolo represents the Court of Appeal in the JSC. Both judges were unsuccessful applicants for the position of Chief Justice.

The roles of the Principal Judge leading the High Court and the President of the Court of Appeal were previously combined in the office of the Chief Justice.