Jubilee plan to ‘fix’ Judiciary rolling full steam ahead

Chief Justice David Maraga at the Supreme Court on October 25, 2017. Since the Supreme Court nullified the August 8 presidential election, the institution has been under siege. PHOTO | FILE | NATION MEDIA GROUP

What you need to know:

  • Judiciary Chief Registrar Anne Amadi said she could not tell whether Justice Kariuki has formally tendered his resignation.
  • Justice Wanjiru Karanja is running against Justice Mohamed Warsame for representative to JSC while the competition is between Justice William Ouko and Martha Koome for president of the court.
  • President Kenyatta nominated Justice Kariuki for approval as the next Attorney-General just two weeks after JSC gave him the 21-day notice following the petition filed by former LSK CEO Apollo Mboya.

The fight for control of the Judiciary is intensifying as judges of the Court of Appeal prepare to elect new president and a representative to the Judicial Service Commission (JSC).

In the elections slated for the first week of March, Judiciary insiders told the Nation that the ruling Jubilee Party is going all out to ensure that only those who can play ball are elected, including delaying to forward the name of the nominee for Attorney General’s position, Justice Kihara Kariuki, to Parliament to be vetted.

A JSC source said they had not received Justice Kariuki’s resignation letter, raising fears that the Executive may be delaying his vetting so that he can oversee the elections before he formally leaves.

“You will be surprised that Justice Kihara Kariuki has not been vetted. So he continues in his current position as president of the Court of Appeal when he is already a nominee for the position of Attorney-General. There is something to it,” said the JSC source, who, because of the sensitive nature of the matter, asked not to be identified.

TENDERED RESIGNATION

When President Uhuru Kenyatta nominated Mr Keriako Tobiko for appointment of a Cabinet secretary, he was categorical that the former Director of Public Prosecutions had tendered his resignation by the time he was being nominated.

It was not so for Justice Kariuki whom President Kenyatta nominated last week to succeed Prof Githu Muigai at the AG chambers.

“Under the powers vested in me by Article 156(2), I have today nominated the honourable Justice Paul Kihara Kariuki to the National Assembly for approval as our next Attorney General,” President Kenyatta had said.

Nothing was mentioned about his resignation.

That Justice Kariuki could still be pulling strings in the affairs of the Judiciary in his capacity as president of the Court of Appeal is unsettling for some who hold that he has one foot already in the Executive and should not be seen to be determining affairs of the court.

COMPETITION STIFF

Judiciary Chief Registrar Anne Amadi, who also doubles as the secretary to the JSC, said she could not tell whether Justice Kariuki has formally tendered his resignation.

“Resignations normally go to the appointing authority which is not us. Ours is usually to recommend for appointment,” said Ms Amadi.

But even as the registrar remained non-committal, another Judiciary source said the judge has was at work last week.

Justice Wanjiru Karanja is running against Justice Mohamed Warsame for representative to JSC while the competition is between Justice William Ouko and Martha Koome for president of the court.

“They (Jubilee) want both positions and the competition is stiff,” a Judiciary insider said.

Justice Warsame is the incumbent representative of the Court of Appeal to the Judiciary’s administrative organ, which recruits judges and magistrates and can also recommend their removal over misconduct or any other reason deemed undesirable for a judicial officer.

Colleagues of Justice Warsame described him as “an objective person who stands firm”, a trait which they said makes him unappealing to the powers that be to continue serving in the JSC.

CONTROL COMMISSION

To that end, the nomination of Justice Kariuki has not been communicated to the National Assembly.

As well as the Court of Appeal representative to JSC, the terms of Law Society of Kenya (LSK) representatives Prof Tom Ojienda and Mercy Deche will be ending in February next year, triggering intense jostling to influence the  filling of the posts in a year’s time.

A member of the outgoing LSK Council, is one of those already being touted to succeed Prof Ojienda.

President Kenyatta recently nominated former Kenyatta University Vice-Chancellor Olive Mugenda, former Agriculture Cabinet Secretary Felix Koskei and Public Service Commissioner Patrick Gichohi, who previously served as a clerk of the National Assembly, to the JSC as the ruling party expands its control of the commission.

Once formally appointed, nominee for position of Attorney-General, Justice Kariuki, will also join the ranks of those who will be expected to do the Executive’s bidding in the JSC.

FORMALLY APPOINTED

The current membership of JSC includes Chief Justice David Maraga as the chairperson, Deputy Chief Justice Philomena Mwilu representing the Supreme Court judges, Justices Warsame and Aggrey Muchelule representing Court of Appeal and High Court respectively, while Prof Tom Ojienda and Mercy Deche represent LSK.

A keen look at the composition of the JSC once the nominees are formally appointed shows the numbers are perceived to be tilting in favour of Jubilee, which gives the ruling party a big say in the appointment of judges, including the Chief Justice, Deputy Chief Justice and judges.

“When you have a JSC that is under control of the Executive you cannot have a Judiciary because the decisional and institutional independence would be crushed. With these manoeuvres, the targets are the Chief Justice David Maraga and the Deputy Chief Justice Philomena Mwilu,” the Judiciary source added.

It was his view that once they have a majority in the JSC, they (Jubilee) will either remove them or ensure they are cut down to size.

“That then ties into the succession question. It also addresses issue of president of the Court of Appeal,  the person who determines who sits in what case, especially the political matters.”

LEGITIMACY

It was Justice Kariuki, as the president of the Court of Appeal, who gave Jubilee some legitimacy after he hastily constituted a three-judge bench of Court of Appeal not stationed in Nairobi to reverse a decision of the High Court that the returning officers who presided over the repeat presidential election were appointed irregularly.

For his troubles, the JSC had given him 21 days within which to respond to the petition for removal against him and justices Erastus Githinji, Martha Koome and Fatuma Sichale for “insubordination, gross misconduct and/or misbehaviour incompatible with the status of judge of Court of Appeal for breach of the Constitution of Kenya, the oath of office and statutory provisions.”

President Kenyatta nominated Justice Kariuki for approval as the next Attorney-General just two weeks after JSC gave him the 21-day notice following the petition filed by former LSK CEO Apollo Mboya.

Since the Supreme Court nullified the August 8 presidential election, the institution has been under siege including direct threats to individual judges as Jubilee moves to “fix” the Judiciary.

Control of JSC and the appointment of pliable judicial officers, it would seem, are some of the ways the ruling party wants to “fix” the Judiciary.