JSC re­treats to Hague to pick new CJ

Eleven can­di­dates were in­ter­viewed in head of Ju­di­ciary search

The Star (Kenya) - - Front Page - BY STAR TEAM @TheS­tarKenya

THE Ju­di­cial Ser­vice Com­mis­sion is meet­ing in The Hague to de­cide on the next Chief Jus­tice of Kenya.

Ac­cord­ing to sources that did not want to be named, all mem­bers of the JSC trav­elled to The Hague for the hear­ing of a mar­itime boundary case pit­ting Kenya against So­ma­lia and will on the side­lines de­lib­er­ate on the CJ is­sue.

They will an­nounce the suc­cess­ful can­di­date soon af­ter re­turn­ing to the coun­try on Thurs­day. This means Kenya will have a new CJ be­fore the end of the week.

The JSC, which com­prises judges Mo­hammed Warsame, Ag­grey Muchelule, mag­is­trate Emily Ominde, Prof Githu Muigai, Prof Mar­garet Ko­bia, Prof Tom Ojienda, Win­nie Guchu, Mercy Ndeche and Kipng’etich Bett, fin­ished the in­ter­views for the po­si­tion of CJ last Thurs­day.

At­tor­ney Gen­eral Muigai and Ojienda, an ex­pert in the law of the sea, are in­volved in the Kenya ver­sus So­ma­lia case.

Those in­ter­viewed for the job of CJ are US-based law Pro­fes­sor Makau Mu­tua, ad­vo­cate Nzamba Ki­tonga, car­pen­ter Paul Kon­gai Udoto, Am­bas­sador Daniel Wambura, Pas­tor Lucy Wanja, judges Al­nashir Visram, Msagah Mbogholi, David Maraga, Smokin Wanjala, Rose­lyne Nam­buye, Jack­tone Ojwang’ and Aaron Ringera.

Dur­ing the in­ter­views the JSC asked ques­tions seek­ing to find out the vi­sion the ap­pli­cants had for the Ju­di­ciary, their un­der­stand­ing of the chal­lenges that face the in­sti­tu­tion, and how to take it to the next level by mak­ing it more ef­fi­cient; what they stand for; their ap­pre­ci­a­tion of in­ter­na­tional law; their net­works within the coun­try and out­side; and abil­ity to source fund­ing for the Ju­di­ciary from donors.

There were also ques­tions touch­ing on the in­de­pen­dence of the can­di­dates, their in­tegrity, tem­per­a­ment, peo­ple skills, whether they were good man­agers, whether they will in­spire con­fi­dence among the ju­di­cial staff, and on their pre­vi­ous judg­ments (for the can­di­dates who were al­ready serv­ing judges).

As the JSC re­treats to find the per­son to suc­ceed the first Pres­i­dent and Chief Jus­tice of the Supreme Court un­der the 2010 con­sti­tu­tion, Willy Mu­tunga, it will have the tough task of find­ing some­one with all, or the ma­jor­ity, of the above qual­i­ties.

The po­si­tion of CJ fell va­cant af­ter Mu­tunga and his deputy, Kal­pana Rawal, both left of­fice in June.

The JSC is rush­ing to fill the po­si­tions, es­pe­cially be­cause the Supreme Court at present has no quo­rum. The court will also de­cide pe­ti­tions in case of chal­lenges to the out­come of the Pres­i­den­tial elec­tion next year.

Ac­cord­ing to the con­sti­tu­tion, the Chief Jus­tice is the chair­man of the JSC and pres­i­dent of the Supreme Court. He does not ex­er­cise ju­di­cial power over other courts. Any ad­min­is­tra­tive power he re­tains over the Court of Ap­peal and High Court is shared with their heads.

Fol­low­ing the in­ter­views, three judges, namely Wanjala, Visram and Maraga, are tipped to be the fron­trun­ners.

The three have the up­per hand be­cause of their ex­pe­ri­ence in the Ju­di­ciary and their peo­ple skills, among other fac­tors.

Jus­tice Wanjala has the added ad-


van­tage of be­ing on the JSC as a rep­re­sen­ta­tive of the Supreme Court and has knowl­edge about the work­ings of the JSC.

Once picked, the CJ is ex­pected to chair the in­ter­views for the Deputy CJ and other va­can­cies on the Supreme Court.

It is also un­der­stood se­nior gov­ern­ment fig­ures are com­fort­able with any of the three be­cause they come from small com­mu­ni­ties out­side of Mount Kenya and the Rift Val­ley. Pres­i­dent Uhuru Keny­atta from Central and Deputy Pres­i­dent Wil­liam Ruto from Rift have been ac­cused of mostly ap­point­ing peo­ple from the two re­gions to key po­si­tions.

Maraga is also fa­vored po­lit­i­cally, as he would be a plus to the Ju­bilee gov­ern­ment, con­sid­er­ing that he comes from Kisii. The Ju­bilee Party regime will be keen on hav­ing him ap­pointed to en­dear it­self to the Aba­gusii com­mu­nity.

Apart from im­pres­sive aca­demic per­for­mance, in­tegrity and ex­pe­ri­ence, the JSC will also con­sider re­gional bal­ance as it names the CJ.

The in­ter­views were marked by fierce ex­changes, light mo­ments and deep aca­demic ar­gu­ments.

At one point, Mu­tua’s in­ter­view be­came a bat­tle of pro­fes­sors as AG Muigai pressed the law scholar on his much-pub­li­cized re­marks, pub­lished in a news­pa­per col­umn un­der his own by­line, that he would never rec­og­nize Pres­i­dent Keny­atta’s 2013 elec­tion vic­tory.

But the worst al­ter­ca­tion oc­curred last Thurs­day, when Jus­tice Ojwang bluntly told the JSC to give him a break when the line of ques­tion­ing ap­peared to ir­ri­tate him.


Mem­bers of the Ju­di­cial Ser­vice Com­mis­sion pre­pare for the first CJ in­ter­view (of Jus­tice Al­nashir Visram) at the Supreme Court on Au­gust 29, 2016.

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