Emeka-Mayaka Gekara

Two opposing camps have emerged in the Judicial Service Commission (JSC) two months to the expiry of Chief Justice David Maraga’s term.

While a group revolving around Maraga, Deputy Chief Philemona Mwilu, Appeal judge Mohammed Warsame and Law Society of Kenya representative Mercy Deche, sees no urgency in replacing the CJ, another faction associated with Attorney General Kihara Kariuki, lawyer Macharia Njeru, and commissioner Felix Koskei is pushing for Maraga’s immediate replacement.

Controversial advisory

High profile sources at the JSC who requested anonymity due to the sensitivity of the matter told People Daily, that the Kihara group was pushing for Maraga’s exit due to his controversial advisory to President Uhuru Kenyatta to dissolve Parliament as well as fears that he could make “other drastic rulings” if he continues to sit at the Supreme Court.

The source said that some commissioners were also opposed to the possibility of Mwilu acting in the position once Maraga’s leaves in January.

In an unprecedented move, Njeru who is also an LSK representative, on Saturday accused Maraga of derailing efforts to recruit his successor.

Njeru made the statement the same week a committee of Parliament published an amendment to the Judicial Service Act seeking to ensure a vacancy in the office of the Chief Justice is filled six months before retirement of the holder.

The Bill, tabled by the Justice and Legal Affairs Committee, was among those singled out for fast-tracking following a State House meeting between Uhuru and the leadership of the National Assembly and the Senate on Saturday.

“Maraga is an unwanted man in the corridors of justice. Some forces had been keen that he will leave six months before his period expires like his predecessor Willy Mutunga but he did not entertain the idea.

Had he left earlier, he would not have been in office to render the advisory that has angered Executive,” said the sources.

“A section of the JSC is also extremely uncomfortable at the possibility of Justice Mwilu acting in the office during the recruiting period officially expected to kick off next year,” added the source.

Contacted, Registrar of the Judiciary Ann Amadi, who is the secretary to the JSC, said:  The (Maraga succession) issue has not been discussed. That is all I can say.”

Yesterday, Njeru stuck to his guns and dismissed threats by the LSK to have him withdrawn from the commission.

In a statement, LSK President Nelson Havi distanced the lawyer’s lobby from Njeru’s outburst and accused the commissioner of being used by forces keen to interfere with the independence of the Judiciary.

Njeru was angered by the failure of a meeting on Thursday during which the Maraga retirement issue was set to be discussed.

Maraga is said to have cancelled the meeting, which was settled on after a stormy session on September 30 when the JSC sub-committee steering the recruitment issued its report.

“After lengthy deliberations of over three hours, the Chief Justice asked for an adjournment to October 16 (today) to allow for consensus other than a vote to decide the crucial process,” Njeru said.

But the CJ on Thursday sent the commission a WhatsApp message cancelling the meeting.

Njeru said the commission’s protests against the meeting’s cancellation have fallen on deaf ears.

 “It is clear that the Chief Justice with a few others are hell bent on derailing the process of picking his successor, leaving the Judiciary in a crisis of leadership,” he said in a statement.

The JSC is singularly mandated to recruit the CJ, the DCJ and judges of the top courts.

Maraga has been a thorn in the flesh of the Jubilee government having presided over a Supreme Court bench that nullified the 2017 presidential election, sparking fury from the establishment.  

Maraga has regularly accused the Jubilee administration of failing to honour court orders and stalling dispensation of justice through budget cuts. 

Currently, Uhuru and the CJ are caught in a standoff over the Head of State’s refusal to appoint 41 judges nominated by the JSC last year over alleged integrity questions.

Yesterday, Njeru was headstrong in support of his statement, saying he was an independent commissioner.

Collective position

“I am not an appointee of the LSK Council. I was elected by lawyers to represent them at the commission.

Once, I am sworn I become an independent commissioner,” he told People Daily.

“Under what law will the LSK withdrawal me from the commission? There is no such provision in law,” he said.

But Deche, the other LSK representative, yesterday distanced herself from Njeru’s statement, describing it as “personal opinion”.

“I will side with the collective position of the commission. The JSC has not announced a decision on the matter and will do so soon. I will be bound by it,” she told People Daily.

The JSC comprises Maraga, who is the chairperson, Mwilu, judges Warsame and David Majanja (High Court), the AG, magistrate Emily Ominde, Prof Olive Mugenda, Deche, Njeru, Felix Koskei and Amadi

Maraga is due to proceed on terminal leave on December 15 ahead of his retirement on January 12, 2021.

LSK President Havi disowned Njeru and other commissioners who he claimed are being used by outside forces hell-bent on controlling the Judiciary and blocking Mwilu from acting in the absence of the CJ.

“The society disassociates itself from the statement and position taken by Njeru in regard to recruitment of a new Chief Justice. We will not allow them to be part of the State capture of the Judiciary and to proceed with their schemes,” said Havi.

The society also dismissed the motion by the Kigano Parliament team proposing amendments to Section 30 of the Judicial Service Act to allow the commission to recruit a new CJ at least six months before retirement date of the serving CJ.

Section 30 of Judicial Service Act provides that the position of the office of the CJ cannot be advertised until it is vacant, if the holder resigns, dies or reaches the retirement age of 70. But the Kigano committee in the amendment tabled before Parliament last week proposes:

“Despite the provisions of paragraph 3 of the First Schedule the Commission may commence the process of filling a vacancy in the office of the Chief Justice six months before the retirement date or expiry of the term of the Chief Justice under Article 167 of the Constitution.

Article 167 says that a judge will retire at the age of 70 or may elect to retire after attaining the age of 65.

 But the committee argues that key positions such as chairpersons of commissions should not remain vacant for a long time.