What you need to know:
- When he leaves office, the law provides that the senior most judge acts as CJ until substantive appointment is made.
- That judge happens to be Deputy Chief Justice Philemona Mwilu.
- Yet, Ms Mwilu has been fighting in court over cases of irregular dealings with a bank and abuse of office.
The Judiciary is in the threshold of transition yet a number of issues remain unresolved and risk precipitating constitutional crisis. Chief Justice David Maraga retires in January upon attaining the mandatory age of 70.
When he leaves office, the law provides that the senior most judge acts as CJ until substantive appointment is made. That judge happens to be Deputy Chief Justice Philemona Mwilu.
Yet, Ms Mwilu has been fighting in court over cases of irregular dealings with a bank and abuse of office. With the cases hanging over her heard, questions are bound to arise if she is to ascend to the top office. Which raises questions why the cases have not been concluded.
Another unresolved issue is filling vacant position in the Supreme Court. Since Justice J.B. Ojwang retired early in the year, his position has not been filled. If Mr Maraga leaves, there will be a shortfall of judges at the Supreme Court, in itself, another constitutional challenge because the institution cannot operate without a minimum of five judges.
In the subsidiary courts, there is a stalemate between the Judiciary and Executive over appointment of some 41 judges to take up empty slots in the Court of Appeal and High Court. To be sure, Mr Maraga has consistently challenged President Uhuru Kenyatta on this without much success.
This week, a parliamentary committee sought to confront this muddle but did not go far enough. The National Assembly Justice and Legal Affairs Committee, chaired by Kangema MP Muturi Kigano, proposed that Ms Mwilu should take over when Mr Maraga retires. But there are those contestations that complicate the matter.
We are faced with a constitutional conundrum, which should be resolved expeditiously. Ms Mwilu’s pending suits, appointment of Supreme Court judge and others for subordinate courts should be concluded fast.
Procrastination and indecision are likely to throw the country into a crisis when Mr Maraga exits in four months.