Emeka-Mayaka Gekara

Chief Justice David Maraga will on December 11 proceed on terminal leave ahead of his impending retirement.

Following his exit, Deputy Chief Justice Philomena Mwilu is poised to temporarily take over the reins at the Supreme Court as the Judicial Service Commission (JSC) embarks on recruiting Maraga’s successor.

But even as Maraga’s tour of duty comes to an end, JSC sources painted a picture of a man still deeply involved in overseeing key matters in the Judiciary.

In fact, this week, he has been actively particpiated in interviews for magistrates seeking promotion to become judges.  

A commissioner who sought anonymity because he is not the official JSC spokesman told People Daily that Justice Maraga’s official last working day will be December 11, after which he will proceed on leave until January when his retirement takes effect.

The decision on the CJ’s departure was communicated during a JSC meeting held on Thursday last week.

“He is supposed to proceed on terminal leave pending his retirement on January 12. This is not about JSC having to hold meetings over the issue, these dates are cast in stone,” said the commissioner.

Law Society of Kenya President Nelson Havi said the lawyer’s body was keenly watching developments at the Judiciary.

“It is a fact that Maraga is set to proceed on terminal leave and return on January 12 to hand over official cars and the court of arms,” said Havi.

The CJ is tomorrow expected to address the country on the State of Judiciary, during which he is expected to highlight key gains of his four-year tenure. Maraga took over as head of the Judiciary in October 2016.

Yesterday, Havi said  given past history, it will take more than four months for the country to get a new Chief Justice.

According to Havi, LSK will play a critical advocacy role in protection of integrity of the office of the Chief Justice during the recruitment of Maraga’s successor.

He warned there were powerful forces in the Judiciary keen to ensure Mwilu does not act as CJ when Maraga leaves. “We will ensure that our representatives at the JSC who wanted Maraga removed before his time are on a tight leash.

We will not condone anything that will undermine integrity of the office of the Chief Justice,” said Havi. “We will resist any attempts to circumvent the pecking order to ensure that another judge, other than Mwilu, acts as Chief Justice,” he added.

According to Havi, LSK will provide information to JSC on the suitability of applicants during interviews “to prevent some known gatekeepers from ascending to the post”.

However, commissioner Mercy Deche, who represents lawyers at the JSC, downplayed Maraga’s retirement and referred People Daily to Judiciary Registrar Anne Amadi, the commission spokesperson.  

“The Chief Justice is a State officer. His retirement is guided by the Constitution and other regulations.

I think the focus should be what he is doing right now and not where he is going.  He is going to address the country on the State of the Judiciary on Friday,” said Deche.

Attempts to reach Amadi for comment did not bear fruit. Judiciary sources revealed that two opposing camps had emerged at JSC ahead of Maraga’s retirement, setting the stage for what could be an intriguing search for his successor.  

 While a group revolving around Maraga, Mwilu, Appellate judge Mohammed Warsame and Deche, sees no urgency in replacing the outgoing President of the Supreme Court, another faction associated with Attorney General Kihara Kariuki, former Kenyatta University vice-chancellor Prof. Olive Mugenda, lawyer Macharia Njeru, and commissioner Felix Koskei, has been pushing for Maraga’s immediate replacement.

The latter group is said to be 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. 

Also, a high-profile source revealed that some commissioners were opposed to the possibility of Mwilu acting in the position once Maraga’s leaves.

 In an unprecedented move, Njeru, who also represents LSK in the commission, last month, issued a statement accusing Maraga of frustrating efforts to find his replacement.

 Njeru was angered by cancellation of a meeting during which the Maraga retirement issue was to be discussed. 

 “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.

 Already, the National Assembly Committee on Justice and Legal Affairs has been asked to fast-track processing of a Bill that will ensure a Chief Justice is recruited six months before the exit of the incumbent.

 The Bill is on the First Reading stage. It was among those singled out for fast tracking following a State House meeting between President Uhuru Kenyatta and the leadership of the National Assembly and the Senate last month.

Similar proposals 

But speaking to People Daily yesterday, Homa Bay Town MP and member of the Kigano committee Peter Kaluma, said the Bill will not affect Maraga because of the process involved in its enactment. 

Kaluma also indicated that the Bill may be withdrawn because similar proposals had been included in the Building Bridges Initiative Bill.

“Maraga is basically gone. The proposal in the BBI Bill is better because it entrenches the six-month period requirement in the Constitution and touches on all State offices including commissioners. I think the committee will prefer the BBI route,” Kaluma said.

Lawyers have already opposed the Judicial Service Commission (Amendment) Bill 2020, saying it will deny JSC powers in the recruitment process. 

The document seeks to amend Section 30 of the JSC Act 2011, proposing that the commission conducts interviews and forwards three names of qualified people to the President to pick one whose name is to be approved by Parliament. The current law provides for submission of only one name.

But Havi says the proposal is against the Constitution, adding that the matter the Bill wants to reintroduce was dealt with by the High Court in May 2016. 

“Insofar as it seeks to revive what the court had dealt with, Parliament has no powers in legislating to amend the Constitution,” he said. 

According to LSK, Section 30 of Judicial Service Act provides that the position of the office of the CJ cannot be advertised until it is vacant, the holder resigns, dies or reaches the retirement age of 70.