The vicious acrimony full of manipulations, legal tussles and outright confrontations that plagued the exit of former Deputy Chief Justice Kalpama Rawal and Justice Tunoi has erupted with the recruitment of the new Chief Justice and his deputy.
The way the Judiciary Service Commission (JSC) is conducting the recruitment exercise and the composition of some of its members is already putting the commission into serious question that have already landed in the high court.
The Commission’s members include now retired Justice Dr. Willy M. Mutunga, who was also Chief Justice and President of the Supreme Court of Kenya, Dr. Justice Smokin Wanjala, Commissioner and Judge of the Supreme Court of Kenya, Justice Mohamed Warsame, Commissioner and Judge Court of Appeal, Justice Aggrey Muchelule, Commissioner and Judge of the High Court of Kenya.
The others are Prof Tom Ojienda, Commissioner and Senior Counsel, Prof. Githu Muigai, Commissioner and Attorney General of the Republic of Kenya, Justice Emily Ominde, Commissioner and Chief Magistrate, Florence Muoti Mwangangi, Commissioner and Advocate of the High Court of Kenya, Prof. Margaret Kobia, PhD and Commissioner, Kipng’etich arap Korir Bett and Winifred Waceke Guchuku.
The challenge over the recruitment exercise was indeed triggered long before the JSC started the exercise but the applicants trying to do the stopping through a legal case filed under a certificate of urgency in Nakuru high court was thrown out.
The list of qualified applicants which was made public was long but as the commission has entered the post short listing mode after publishing six names of those gunning for both the CJ and DCJ jobs temperatures have soared high and continue spiraling higher over the way the commission has conducted the whole business.
Though the entry and exit of the immediate former Chief Justice Willy Mutunga was smooth the entry of his successor is already showing tale tell signs of rampant acrimony, manipulations and protracted legal tussles that may delay the entire process.
The JSC composition and integrity in conducting the exercise is already being queried by the presence of senior counsel Tom Ojienda and particularly the many high profile corruption cases he is still publicly defending, including the Mumias Sugar Company looting saga that put its former Chief Executive Evans Kidero on the spot who hired Ojienda to his defense.
The six names that were published of those short listed brings into question the criteria the commission used to arrive at those names when there are many others who were overly qualified but were not considered yet perceived as better options than those on the list of the six to be interviewed for the job.
The six candidates are Justices Alnashir Visram, Smokin Wanjala, Roselyne N. Nambuye, David Maraga, Mbogholi Msagha, and Nzamba Kitonga. Outspoken US-based law scholar and columnist Makau Mutua and former anti-corruption commission chairman Aaron Ringera were some of the big names that failed to make the shortlist for the position of Chief Justice.
When it comes to the job of the DCJ a whopping 14 names have been shortlisted. The list includes Abida Ali Aroni, Martha Koome and Roselyne Nambuye. Others are Hannah Okwengu, Abida Ali Aroni, Agnes Murgor, Wajiru Karanja, Philomena Mwilu, Fatuma Sichale, Lydia Achode, Pauline Nyamweya, Martha Koome, Roselyne Nambuye, Surinder Kapila, Pamela Mwikali Tutui and Joyce Miguda Majiwa. Eighteen other applicants have also been shortlisted for the position of judge of the Supreme Court.
Now the question of high level political and corporate manipulations have entered the scene bringing into question the integrity of the whole exercise with those pro-establishment (the executive) pointing out that the Chief Justice job may go to either Justices Alnashir Visram or Justice Msaga Mbogholi when other competitors like Prof. Wanjala are far much more qualified and experienced to take that position but sources within the Judiciary staff say they would prefer Judge Mbogholi expressing fears of arrogance in Visram.
With the entry of political manipulations at this level of the exercise shows how extremely high the stakes involved are considering the fact that the country is already reeling from the general elections fever when the whole exercise is due next year – but we all know the role the courts play in this country’s politics.
There is also the critical equation of public participation in the exercise as required by the Constitution of the Republic of Kenya 2010, but it was so far clearly emerged that there has been virtually no participation by members of the public or representation from the civil society.
This also brings into question the transparency and accountability of the whole exercise by the Judicial Commission which is supposed to be the country’s leading light and example in the execution of free and fair justice for at all levels of the society.
It is from this background that already the JSC has already been hauled to court by the same Nakuru based civil society organization seeking to stop the entire exercise until when its suit is heard and determine, unfortunately the suit is before the same judge who denied them the earlier application but things have to be left to the wheels of justice.
The group says the process does not meet the constitutional threshold for transparency and accuses JSC of midwifing the CJ, DCJ and the Supreme Court judge posts based on an unknown criteria.
The Nakuru High Court Judge Justice Janet Mulwa certified the matter as urgent on the matter which was filed on Friday July 15th, 2016 and immediately swung into action and scheduled inter-parties hearing for July 21st, 2016.
This automatically means that Kenyans may have to wait a little bit longer than expected for a new Chief Justice (CJ), Deputy Chief Justice (DCJ) and a judge of the Supreme Court after a lobby group sued to stop their recruitment.
It was last Friday when the Trusted Society for Human Rights Alliance filed a petition at the Nakuru High Court seeking to stop the hiring, claiming the process is “opaque, clandestine and shrouded in secrecy against the Constitution and does not inspire public confidence.”
The lobby group, through lawyers Benard Kipkoech Ng’etich and Lawrence Karanja, has sued the Judicial Service Commission, accusing it of being resistant to public scrutiny
According to the petitioner, apart from the advertisement asking qualified applicants to apply for the posts, the whole process has been shrouded in secrecy, nepotism, and horse-trading hard and shrewd bargaining, especially in politics at the expense of accountability and nationalism.
The lawyers therefore argue that the recruitment exercise is not constitutional as it has been turned into a theatre of absurdities. It is not open to public participation,” states part of the petition.
They pointed out that the process has denied participants an equal opportunity as required by the law, including Supreme Court judge Jackton Ojwang’, law Professor Makau Mutua and former Kenya Anti-Corruption Commission (now Ethics and Anti-Corruption Commission) boss Aaron Ringera, among others.
It will be noted that Justice Ringera while at the Kenya Anti Corruption Commission (KACC) had recommended 20 high profile cases for the prosecution of Anglo-Leasing scandal among them were the former Deputy Premier who is now the leader of Amani National Congress (ANC) and his long time confidant the Mumias Sugar chair Dan Ameyo who at one time served as the Secretary General of UDF which was headed by Mudavadi among others.
The advocates are seeking conservatory orders barring the JSC from interviewing the shortlisted candidates scheduled for July 29th, 2016 or filling the positions until the matter is heard and determined.
It has since emerged that Justice Janet Mulwa certified the matter as urgent and scheduled and inter-parties hearing for July 21st, 2016 and this where perhaps just another beginning of protracted expensive legal tussles that should be squarely brought to the JSC shoulders to bear.