Behind-the-scenes intrigues in the search for Chief Justice

On Monday mid-morning, the Court of Appeal sat to deliver a ruling that allowed the Judicial Service Commission (JSC) to deliberate on the concluded interviews for the vacant office of the Chief Justice.

As Justices Roselyn Nambuye, Philip Kiage and Sankale Ole Kantai were delivering their ruling, activist group Katiba Institute and US-based legal scholar Makau Mutua were filing a fresh case at the High Court seeking to stop the JSC from nominating a candidate to head the Judiciary.

Last week, the High Court stopped the JSC from proceeding with plans to hire a Chief Justice and another Supreme Court judge, following three separate petitions.

The three petitioned questioned why Prof Olive Mugenda chaired the interviews despite the law providing for either the Chief Justice or deputy to lead JSC business. 

The petitioners insisted that Deputy Chief Justice Philomena Mwilu should have headed the panel.

The petitions also faulted the JSC for failing to properly vet candidates’ applications before shortlisting them for interviews.

Of the 10 candidates, it was only Court of Appeal judge William Ouko who had complied with all tax compliance and wealth declaration requirements that were placed in the JSC’s advertisement for the Chief Justice and Supreme Court judge vacancies.

Even the eventual JSC nominee, Court of Appeal judge Martha Koome, submitted two out of the required three wealth declaration forms.

Public officers had been asked to submit their last three wealth declaration forms.
Justice Koome also failed to submit her spouse’s wealth declaration form.

Displeased with the High Court decision, the JSC filed challenged Justice Antony Mrima’s decision at the Court of Appeal.

And as soon as Justices Nambuye, Kiage and Ole Kantai quashed the High Court orders, the JSC set out to open up the envelopes containing scores that candidates for the Chief Justice position attained.

Barely three kilometres from the Supreme Court, the case filed by Katiba Institute and Prof Makau was yet to be heard, hence it was of no consequence despite it posing the risk of halting recruitment of a substantive Chief Justice.

Prof Mutua and Katiba Institute in their suit want the Chief Justice recruitment process stopped, and the JSC compelled to make public results of each candidate.

They argued that the public reveal of results would give public confidence to the process.

Kenya’s 15th Chief Justice

Lawyer Nkonge argues that failure of JSC to provide the information infringed and violated the values and principles of governance especially those that relate to participation of the people, integrity, transparency and accountability. 

"The information sought is necessary to assert the sovereignty of the people of Kenya in relation to powers vested on JSC to ensure the decisions are made in a manner that respects the constitutional standards," says the lawyer. 

A three-judge bench was to be constituted for the matter to be heard, but that was not to happen.

Just before 4pm, the Judiciary sent feelers to newsrooms requesting for coverage of a major announcement, which was largely understood to mean that the JSC had settled on Kenya’s 15th Chief Justice.

Following the partial lockdown measures imposed on Nairobi, Kiambu, Machakos, Kajiado and Nakuru Counties government offices reviewed their close of business time to 4pm.

Three staffers in different departments have since confirmed to the Nation that the Judiciary’s official close of business time is 4pm.

Minutes after 4pm, the JSC was determined to nominate a Chief Justice before sundown.

Unanimous decision

In the same tent where the JSC conducted interviews for the vacant Chief Justice position, commissioners were holed up in a meeting.

At exactly 4.26pm, JSC vice chairperson Prof Olive Mugenda led her eight colleagues to a podium that had just been set up minutes earlier, and she announced that the interview panel had unanimously settled on Court of Appeal judge Martha Karambu Koome for the position of Chief Justice.

Despite only convening for a few hours, Prof Mugenda said that the JSC had held “lengthy deliberations” before coming to a decision and forwarding Justice Koome’s name to State House for approval by President Uhuru Kenyatta.

“The JSC has run an open, transparent and competitive recruitment process that has witnessed the participation of the public and key stakeholders. After lengthy deliberations and careful consideration of the performance of the various candidates, the JSC has unanimously recommended the appointment of Hon Lady Justice Koome Martha Karambu, judge of the Court of Appeal as the Chief Justice of the Republic of Kenya and has submitted her name to His Excellency the President for appointment,” Prof Mugenda said.

The JSC team did not stick around to answer questions, but Prof Mugenda revealed that the panel will not make public individual results.

“Our duty was to select the best candidate and that is what we have done,” Prof Mugenda said as the JSC team walked out of the tent.

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