JSC halts search for top judge as activist under fire over hefty pay

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The Judicial Service Commission has said it will not nominate the next Chief Justice in line with a court order issued on Thursday which temporarily halted the process.

High Court judges Anthony Mrima, Wilfrida Okwany and Reubens Nyakundi issued the orders following a case filed by Tolphin Nafula, Philip Muchiri and Memba Ocharo challenging the JSC’s decision to have Commissioner Olive Mugenda chair the interviews.

The High Court bench also stopped the interviews for a Supreme Court judge, which were to begin Monday.

“As we said yesterday, the rule of law applies to every institution, individual or authority - and JSC is not an exception. As an institution that is committed to the rule of law, we will wait for the court process to be concluded before we resume and conclude the process of announcing our nominee and commencing the process of interviewing the Judge of the Supreme Court,” Prof Mugenda said yesterday.

Under the law, the Deputy Chief Justice should take over some functions of his or her boss, including chairing the JSC and its processes like interviews.

Constitution review

The petitioners at the High Court want the interview process quashed because Prof Mugenda chaired the interviews despite Deputy Chief Justice Philomena Mwilu being present for the duty.

Yesterday, Kanu-era bureaucrat and gender activist Alice Yano dismissed claims that she frustrated a Constitution review two decades ago, insisting that her contribution to the process sowed the seeds for the 2010 laws currently in place.

Ms Yano, the last of 10 candidates to be interviewed for the position of Chief Justice, denied that she tried to allocate 73 per cent of the Constitution of Kenya Review Commission’s (CKRC) budget to cater for top of the range vehicles, cellphones and monthly salaries of appointees.

The Judicial Service Commission (JSC), which is hunting for Justice David Maraga’s successor, asked Ms Yano whether a media report painting her as the architect of the controversial emoluments is accurate.

Among the emoluments were a Sh3.5 million monthly salaries for each commissioner and brand new Nissan Patrol cars, which were then top of the range vehicles. The perks also included mobile phones for the commissioners, which at the time cost Sh462,000-a-piece.

The advocate of 26 years insisted that the controversial payments that were proposed by the National Assembly and that she had no role in the hefty perks.

Proposed payments

CKRC chair Prof Yash Pal Ghai vetoed the proposed payments.

Ms Yano was in the CKRC finance and administration committee, having been appointed after a row with a rival commission – the People’s Commission of Kenya.

Ms Yano said that her contribution to CKRC was crucial in coming up with a draft Constitution that eventually became the blueprint from which the laws promulgated in 2010 were drawn from.

The lawyer said she will clear  the backlog of cases in the Judiciary if appointed.

Kenya’s most powerful judge, by incorporating technology and weeding out corruption from the institution.

“Nothing of the sort happened. Actually our motor vehicles were never sourced by commissioners. We never had that power. The motor vehicles were sourced by Parliament and the clerk was the one in charge of sourcing motor vehicles. Phones, that one is hearsays, there was nothing like that,” Ms Yano said.

The lawyer of 25 years standing explained, with difficulty, relevant sections of the law on an array of issues but was quick to add the Muruatetu decision has caused a lot of confusion in the legal fraternity.

“Do you recall the particular section of the law the Supreme Court was asked to give an opinion in the Muruatetu case,” Commissioner Justice David Majanja asked her.

“I cannot recall which law the court had been called upon to give an opinion and directions on the question of the mandatory death sentence,” Ms Yano responded.

On electoral laws the applicant seeking to be nominated as the 15 Chief Justice since independence told the JSC that she would result to advising sexual victims not to go public if they are assaulted by male collegues in their work places, instead of taking the necessary legal steps as a CJ.

While Ms Yano had not obtained tax compliance status at the time she applied to become Chief Justice, the lawyer said she has since made amends with the taxman and is now cleared.

She faulted the Covid-19 pandemic for late submission of her wealth declaration and audited accounts over the last three years, stating that her accountant had contracted the virus and was out of work while recovering.

Ms Yano had claimed that she has no pending dispute with past clients, but the JSC traced a 2013 case filed against her.

She said the omission was an oversight, but was uncomfortable going into details of the case as it is still ongoing.

The gender activist told the JSC that she relocated to Kajiado after realizing that many of her clients were destitute women from the county, and that she needed to take service closer to those most in need.

Ms Yano quipped that on the stalemate between the Judiciary and President Uhuru Kenyatta over appointment of judges, she would call the First Lady to assist in resolving the standoff.

“I would just pick a phone and call Mama Margaret and ask her to call me for a cup of tea and get me to know the moods of mzee and then meet him with members of the commission to sort out the issue. That’s a joke by the way,” she said.


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