By: PAUL OGEMBA
The Judiciary has been rocked with early jostling in the race to succeed Chief Justice Willy Mutunga and his deputy, Justice Kalpana Rawal.
Justice Mutunga, who is President of the Supreme Court, and the first CJ under the Constitution that was promulgated in 2010, celebrated his 68th birthday in June. He must retire by June 17, 2017 when he turns 70.
Justice Rawal turns 70 next year and will have left earlier. The impending vacancy is attracting great interest as her successor as Deputy Chief Justice and Vice President of the Supreme Court will emerge as front-runner in the race to succeed the CJ.
At least four Court of Appeal Judges and one in the Supreme Court are said to be angling to succeed her.
When Court of Appeal judges were reshuffled in April and some senior ones transferred to stations outside Nairobi, it heightened the quiet struggles for the position already in play.
At the time of the transfers, an Appellate Judge, who wished not to be named, summed up the infightings, saying the race to succeed Dr Mutunga has created factions within the Judiciary.
“It is not well at the Court of Appeal, some judges posted outside Nairobi are unhappy. They interpreted the move as a scheme to lock them out of the race for the top positions,” said the judge.
According to the judge, it was surprising that five judges, who handled two of the recent hotly contested disputes, (digital migration and security laws appeals) were transferred.
Justices David Maraga, Daniel Musinga and Roselyn Nambuye, who handled the digital migration case, were taken to Kisumu and Nyeri, respectively, same to Judges Patrick Kiage and Agnes Murgor, who alongside Justice Musinga, upheld the decision to suspend some clauses in the controversial security laws.
Justice Rawal’s retirement, however, might depend on the outcome of a pending case filed by two judges challenging the retirement age.
Justices Philip Tunoi and David Onyancha’s argument is that those judges appointed under the old Constitution should retain the retirement age of 74.
Although she is not a plaintiff in the case, Justice Rawal might be watching keenly, as is among those appointed under the old Constitution.
In opposing the suit, the Judicial Service Commission maintains that all judges took fresh allegiance to the 2010 Constitution and should retire at 70.
“The significance of taking the oath is an acknowledgment that they hold offices under the Constitution and are bound by provision which requires all judges to retire at 70. Retirement of judges is an administrative issue and we do not have to inform them in advance,” said Shief Registrar Anne Amadi in her replying affidavit to the suit.
According to the registrar, the office of a judge is a public office subject to rules that govern it and that all laws that governed judicial operations cannot supersede the Constitution.
Should the commission successfully persuade the High Court to dismiss Justices Tunoi and Onyancha’s petition, the battle to succeed Justice Rawal will officially shape up.
With the presumption that Justice Mutunga’s deputy must be female, those seen as frontrunners for the job are Supreme Court Judge Njoki Ndung’u, and Appeal Court Judges Agnes Murgor, Martha Koome, Hannah Okwengu and Wanjiru Karanja.
Justice Ndung’u enjoys seniority and the experience of working with Justice Mutunga and Justice Rawal, which makes her a strong contender.
Justice Murgor, on the other hand, could benefit from provisions on regional balance which top lawyers say should be the guiding principal to ensure no region is dominating appointments to a constitutional office.
Contacted on the issue of regional balance, Senior Counsel Ahmednassir Abdullahi said the Supreme Court must reflect the face of Kenya and represent its diversity by not having more than two members in the seven-member bench from one region.
He is one of the most influential lawyers. When he was a member of JSC, he was seen to have had a major hand in the composition of the CJ’s bench
“Diversity is the face of the Supreme Court and without it there will be no public faith. The representation must be fairly as humane as possible and although it can have more than one member from one community, it will look very unreasonable considering Kenya is a multi-cultural society,” said Abdullahi.
It is this provision that could work in favour of Lady Justice Murgor to replace Justice Tunoi, based on her academic records, and experience of being the senior most judge from the Kalenjin community.
Although she might be considered as coming from the same eastern region of Ukambani as Dr Mutunga, she is married to lawyer Philip Murgor, who is Kalenjin and makes her considered as from the Kalenjin community.
She has master’s degree in law and was among the new crop of private lawyers appointed to the bench as a result of many years’ experience in the corporate world.
Lady Justices Koome and Okwengu will be taking a second shot at post after they lost out to Ms Nancy Barasa in the initial interviews in 2011.
Judge Koome depends on her experience in the Judiciary having served as a High Court Judge for eight years before being appointed to the Appellate Court in 2012 and was considered the second most suitable candidate after Ms Barasa.
She is, however, considered as representing the same region as Mt Kenya region as Justice Ndung’u, which could impact on prospects of moving up to the Supreme Court.
Justice Okwengu, having risen through the Judiciary ranks from a magistrate, is also viewed to be a strong candidate.
According to lawyer Anthony Oluoch, the impending retirement of Judges Rawal and Tunoi will present the best opportunity to promote regional and gender equality.
There is talk that the CJ might opt to leave office earlier. Three judges viewed as possible replacements are Justices Smokin Wanjala (Supreme Court), Philip Waki and Kihara Kariuki (Court of Appeal). His succession will also be largely influenced by the outcome of the retirement age dispute at the High Court.
The CJ has privately told friends that he wishes the succession issue to be settled well before he leaves office so that there is no room for conflict.