LSK wrangles hand State headstart in selection of Chief Justice

By the time the interviews for the next Chief Justice and judge of the Supreme Court start in April, the membership of the Judicial Service Commission (JSC) will have gone down by one, potentially bolstering the State’s influence over the recruitment.

The term of commission vice chairman Mercy Deche, who is the female member representative of the Law Society of Kenya (LSK) in JSC, expires on March 24.

However, LSK will not have a replacement for the unforeseeable future as the infighting at the society means that the elections that had been scheduled for March 25 will likely not take place as had been scheduled.

The society is practically being run by court orders, extending to even payment of staff salaries.

High Court judge Weldon Korir on February 3 suspended all the resolutions and decisions of LSK’s Special General Meeting (SGM) held on January 18, including the approval of the Independent Electoral and Boundaries Commission (IEBC) to conduct the election pending the hearing and determination of the petition by lawyer Adrian Kamotho.

Retirement

The SGM had also constituted the board to conduct that poll.

JSC currently has 10 members following the retirement of former Chief Justice David Maraga. Of the 10, there are two non-lawyers — Prof Olive Mugenda and Felix Koskey — who are direct appointees of the President, in addition to the Attorney General and a nominee of the Public Service Commission, giving the State four representatives.

With Ms Deche gone and with no replacement in sight, the LSK will have just one representative in the commission, namely Macharia Njeru.

LSK representatives normally play an important swing vote role where the Executive and Judiciary representatives cannot agree.

According to Mr Njeru, it would have been ideal to have both the female and male LSK representatives during the recruitments of the CJ and Supreme Court judge.

“That notwithstanding I assure members of the Law Society that I represent and the public too that I will robustly play my role in ensuring that in the two positions we have men or women of the highest integrity, with good jurisprudential minds, and capable of protecting the independence of the Judiciary from both State and non-State actors.

“This I am confident the commission will achieve,” he said.

Mr Njeru received a rebuke from the LSK last October when he and a section of JSC commissioners wanted to start the search for the next Chief Justice before Mr Maraga left office.

The LSK accused him of having been roped into a “nefarious illegal enterprise intended to subvert the Constitution of Kenya and interfere with the independence of the Judiciary.”

Following her departure on March 24, the State will retain its four representatives out of nine giving the State a substantial voice in the recruitment of the next Chief Justice and a judge of the Supreme Court.

“It is quite evident that by preventing us from holding an election, the end goal is to exclude a replacement of Mercy Deche and to have only Macharia Njeru.

“That will hand the State an automatic majority,” said LSK president Nelson Havi.

LSK council on February 8 communicated the suspension of Mr Havi as LSK president as the boardroom fights escalated.

Extremely untidy

LSK council member Bernard Ngetich, who belongs to the faction critical of Mr Havi’s leadership, says the blame for the society not having the female representatives at JSC after Ms Deche’s term expires should be shared by all council members.

“We are in a situation where the president is suspended and council members are back in office because of a court order, which is extremely untidy because of a purported suspension of council members by a few hecklers.

“And the truth of the matter is that there is a possibility that we will not have our female representative by March but we hope we can get one by April,” said Mr Ngetich.

The decision by Justice Korir has been appealed and the Court of Appeal certified it urgent but issued no orders. It set a hearing date of March 16, which will be just some nine days before the election for a female representative to the JSC.

Mr Havi says he has appealed to both the registrar and deputy registrar of the Court of Appeal and also written to the president of the Court of Appeal over the hearing date of March 16 but “they have refused to respond”.

“We are not asking the Court of Appeal to rule in our favour but to rule in good time to enable us to plan for the election adequately. But by giving us a hearing date on March 16 when the elections are supposed to be on March 25, when will we be able to review the register (of voters) and hold the election so that by the time Mercy leaves on March 24 we have a replacement?” he posed.

Before the High Court suspended the resolutions made at the SGM of January 18, the soon-to-be vacant position of female representative to the JSC had attracted eight candidates namely Anna Konuche, Christine Ungu, Christine Kipsang, Jacqueline Ingutiah, Jane Nyaboke, Julie Soweto Aull, Maria Gorreti Nyariki, and Mercy Aoko Otieno.

Supreme Court

JSC has shortlisted 10 people to replace Mr David Maraga who retired in January. They are the President of the Court of Appeal William Ouko, Court of Appeal Judge Martha Koome, High Court Judge Said Chitembwe and Employment and Labour Relations Judges Mathews Nduma Nderi and Njagi Marete, Philip Murgor, Fred Ngatia, Patricia Mbote, Prof Wekesa Moni and Alice Yano.

Those who were dropped are Prof Mare Otinga, Mr Otondi Ontweka and Mr Brian Ombongi Matagaro.

The interviews for the candidates hoping to succeed Mr Maraga will take place between April 12 and April 23 with the panel set to grill a candidate a day.

The interviews for the judge of the Supreme Court to replace Justice Jackton Ojwang’ who retired in February 2020, on the other hand will take place between April 26 and 30. JSC has shortlisted nine candidates namely Justice Ouko and his Court of Appeal colleagues Koome and Kathurima M'Inoti, High Court judges Joseph Sergon, Chitembwe, Marete and Nderi, Prof Lumumba Nyaberi, and Ms Yano.

The 2016 recruitment also saw only nine JSC commissioners conducting the recruitment. This was because there were vacancies in both offices of the Chief Justice and Deputy Chief Justice following the retirements of Dr Willy Mutunga and Kalpana Rawal respectively.

This time however, the deputy chief justice Philomena Mwilu is in office and has been the Supreme Court representative in the JSC. She is currently the acting Chief Justice.

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