Let Mwilu step in when Maraga retires, say MPs

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Philomena Mwilu during her swearing-in as Deputy Chief Justice at State House in Nairobi on October 28, 2016.

Photo credit: File | Nation Media Group

What you need to know:

  • The National Assembly Justice and Legal Affairs Committee raised concern that with CJ David Maraga set to retire in January 2021, there could be a crisis hence the need to have Deputy Chief Justice Philomena Mwilu step in.
  • Minority Whip Junet Mohamed said once the CJ takes his terminal leave, it can only be concluded that his term has ended because he will be reporting back on his last day.

A parliamentary committee wants the Judiciary to come up with legislative proposals to allow the Deputy Chief Justice to act in the absence of the Chief Justice. 

The National Assembly Justice and Legal Affairs Committee raised concern that with CJ David Maraga set to retire in January 2021, there could be a crisis hence the need to have Deputy Chief Justice Philomena Mwilu step in.

The committee chaired by Kangema MP Muturi Kigano said it was important to have a temporary holder of office until a new one is recruited by the Judicial Service Commission.

Article 163 (2) of the Constitution states that for a proper sitting ,the Supreme Court should have five judges. While in the absence of CJ Maraga the Supreme Court will still be properly constituted, DCJ Mwilu is currently facing a case in court and if this is contested, the apex court could be left with only four judges.

Ms Mwilu’s case is currently before the Court of Appeal where she is facing abuse of office charges.

Appearing before the legal committee alongside members of the Judicial Service Commission yesterday, CJ Maraga confirmed he would be proceeding for his 30 days terminal leave on December 12 and that he would be back in office on January 12 — his last day in office.

“I will take my terminal leave on December 12 but the Judicial Service Commission cannot start the process of recruiting when I’m away, I will still be the Chief Justice,” Mr Maraga told the committee.

Terminal leave

Mr Maraga, 69, is expected to leave office on January 12 upon attaining 70 years as stipulated by the Constitution.

Minority Whip Junet Mohamed said once the CJ takes his terminal leave, it can only be concluded that his term has ended because he will be reporting back on his last day.

“If the term ends on January 12, can the Deputy Chief Justice act while he is away?” posed Mr Mohamed.

Homa Bay Town MP Peter Kaluma said: “It should be confirmed to us that if there would be any constitutional crisis, who steps in the office once the Chief Justice is out of office.”

But Mr Maraga clarified that being away on terminal leave does not amount to his office being vacant.

On the tussle between the Judiciary and the executive over the pending appointment of the 41 judges, Mr Maraga said JSC had done its part and the matter is now out of its hands.

However the media was locked out when MPs pressed on the CJ to disclose the adverse report that was presented to President Kenyatta that has made him to delay in appointing the judges.

“This is a matter that I would like to discuss in camera,” CJ Maraga said.

MPs raised concerns that the majority of courts across are still closed due to lack of judges and wanted to know what Judiciary is doing to address the situation.