Mutunga, Baraza and Tobiko get House nod

Kenya is on the verge of having a new Chief Justice after MPs approved the nomination of Dr Willy Mutunga to head the judiciary.

The House also approved the nomination of Ms Nancy Baraza to the new post of Deputy Chief Justice and Mr Keriako Tobiko as Director of Public Prosecutions.

But Mr Tobiko’s nomination faced opposition from some MPs who wanted allegations against him investigated first before he could assume office.

It now remains only for President Kibaki to announce the formal appointments and the three to be sworn into office.

The office of Chief Justice is crucial under the new constitution because the holder will preside over disputes in any presidential election.

The Chief Justice can also be petitioned to ask the president to dissolve parliament if MPs delay enacting laws to effect the new constitution.

Dr Mutunga is a former political detainee and civil society activist while Ms Baraza was the founder of the Federation of Women Lawyers of Kenya (Fida).

A section of the report of the Committee for Implementation of the Constitution requiring Mr Tobiko to be further investigated was expunged before the nominations were put to the vote.

When Deputy Speaker Farah Maalim put the matter to the vote, Dr Mutunga, Ms Baraza and Mr Tobiko’s nomination received overwhelming support from MPs who voted by acclamation.

The emotion which characterised the debate was evident in the expulsion of two MPs for flouting parliamentary procedure.

Nominated MP Millie Odhiambo, who seconded the Motion, and Gwassi MP John Mbaadi were expelled.

Ms Odhiambo provoked the anger of MPs when she said that submissions at the vetting stage revealed that 15 per cent of Kenyans, including MPs, were gays and lesbians.

She was kicked out after defying an order by Deputy Speaker Maalim Farrah that she withdraw and apologise. The Chair also ordered that her allegations be expunged from Parliamentary records.

Amidst the acrimony, Nyakach MP Fred Outa (ODM) asked that the motion be put to vote given that most contributors were repeating themselves.

At 8.35, the motion was put to the vote and the excited MP overwhelmingly adopted the amended report.

The nominations were opposed by Cabinet minister Mutula Kilonzo and MPs Martha Karua, Rachel Shebesh and Mbaadi because of the inclusion of Mr Tobiko’s name.

Committee chairman Abdikadir Mohammed likened the debate to the enactment of the American constitution.

The House was debating the three nominees on the same day that the Judicial Service Commission revealed the list of nominees for the Supreme Court.

Mombasa High Court judge Mohammed Ibrahim is among the five nominated to Kenya’s highest court alongside Appeal Court judge Philip Tunoi and High Court judge Jackton Boma Ojwang..

Nominees from outside the judiciary are former MP Njoki Ndung’u and former Kenya Anti-Corruption Commission deputy director Smokin Wanjala.

Supreme Court nominees Ms Ndungu and Prof Wanjala bring experience in research and human rights, according to Prof Christine Mango who chaired the Judicial Service Commission interview panel.

“They carry a lot of experience from elsewhere – the wider experience – while the others carry the bench experience,” she told Daily Nation.

Prof Mango said the five names were going to be forwarded immediately to President Kibaki, the final appointing authority, with a copy to Prime Minister Raila Odinga.

Mr Justice Tunoi is only Appeal Court judge who has so far passed an interview by the judicial service commission. Dr Mutunga and Ms Baraza will join the five at the Supreme Court.

The Supreme Court will hear presidential election disputes and determine appeals from the Court of Appeal or tribunals. The court will also give an advisory opinion on critical matters at the request of an organ of government.

The Chief Justice shall be the president of the Court with Deputy Chief Justice the vice-president. Before his appointment to the Judiciary in 2003, Mr Justice Ojwang was a professor of law at the University Nairobi. 

Justice Ibrahim is probably best remembered for a ruling declaring irregular the 2007 election of Trade minister Chirau Mwakwere as MP for Matuga. 

The five beat a list of 25 applicants. Only 22 were interviewed. Those who failed to make the cut included Appeal Court judges Appeal judges Riaga Omolo, Alnashir Visram, Philip Waki, Emmanuel O’Kubasu,  Erastus Githinji and Joseph Nyamu.

The applicants from the High Court were Msagha Mbogoli, Kalpana Rawal, Martha Koome, Muga Apondi, Hannah Okwengu and Ruth Sitati.