The appointment of a new Chief Justice for Kenya is turning into the nightmare that court-watchers had predicted – and the process still has a long way to go. Former CJ David Maraga officially stood down last week, having taken his outstanding leave from mid-December 2020. He leaves behind a number of unresolved conflicts between the judiciary on the one hand and the executive and legislature on the other. For example, President Uhuru Kenyatta still refuses the appointment of more than 40 judges selected by the Judicial Service Commission – apparently part of his retribution for the court holding in September 2017 that elections in the previous month were invalid. The latest problem, however, concerns the Deputy Chief Justice, Philomena Mwilu, set to take over as Acting Chief Justice pending the new appointment. However, a legal activist has been making determined efforts to stop her from taking the acting appointment, saying that she is not constitutionally entitled to such a post, and that corruption charges pending against her also disqualify her from serving as ACJ. Now the high court’s constitutional and human rights division has refused to consider this controversial petition. But it has set new deadlines for amendments to be made to the original petition after which the matter could return to court.
When Kenya’s immediate past Chief Justice, David Maraga, announced he was taking leave pending his retirement in January 2021, he added that the Deputy Chief Justice, Philomena Mwilu, would take over as Acting Chief Justice from the time of his departure until someone was appointed to succeed him.
That announcement seems to have galvanised legal activist Okiya Omtatah Okoiti, and he launched a high court petition asking that the appointment of Justice Mwilu as ACJ be declared unconstitutional.
Okoiti also asked that the Judicial Service Commission be barred from appointing her to act as CJ ‘unless and until the (JSC) clears her of the accusations levelled against her in the four petitions … seeking her removal.’
After a hearing earlier this month, Judge Antony Mrima has now delivered his decision on the matter so far. He said he had to be careful about issuing ‘conservatory orders’ since the main dispute still had to be argued.
Okoiti’s petition was based on his claim that the position of an Acting Chief Justice did not exist in law. Moreover, even if such a position did exist, then Justice Mwilu ‘is not suitable to occupy it’.
He said his objections had nothing to do with the way she carried out her duties as a member of the supreme court. Rather, he questioned whether she was suitable to take over the CJ’s administrative functions and to be ‘the face of the judiciary’ given that she was under ‘active investigation’ by the JSC related to claims of ‘abuse of office and corruption’ made by the director of public prosecutions and the director of criminal investigations’.
'Indolence and dereliction of duty'
The JSC had these cases before it, said Okoiti, and he ‘decried’ how long the commission was taking to deal with them. In his view, the JSC had ‘by way of indolence and dereliction of duty, failed, refused and ignored to prosecute’ the claims against the judge.
According to Okoiti, former CJ Maraga acted outside his powers when he announced that Judge Mwilu would act as CJ.
In her response, Judge Mwilu argued that some of the issues raised by Okoiti were not part of his original petition, an issue picked up Judge Mrima. He said that he had carefully studied the petition and found that, indeed, key issues raised by Okoiti were not in found his petition but were included in the amendments he wanted to make.
The judge said he could not deal with the issues raised by Okoiti outside the petition. They were off-limits until his petition was properly amended and these matters properly included.
On the remaining questions, Okoiti claimed that Judge Mwilu should not act as the CJ ‘since her integrity has been impugned’ with calls for her to be removed. Countering this, Judge Mwilu herself said no adverse finding on her integrity or suitability to serve as the DCJ had ever been made. This meant that there was ‘no impediment in law’ to prevent her acting as Chief Justice.
Okoiti’s initial petition had not established that, on the face of it, he had a case. Judge Mrima thus dismissed the application, but made it clear that Okoiti could amend his petition, setting deadlines for both sides to do so.
Local media and organisations that promote constitutionalism say that the executive has been working to reconstitute the JSC so that its decisions will be pro-government and appointments will reflect government preferences.
Writing for The Elephant, Kenyan journalist Kwamchetsi Makokha warns, however, that the CJ wields mostly moral and symbolic power. Government energy spent in trying to control who is selected as the new CJ might well end up causing frustration for the executive ‘when administrative fiat and bench-fixing do not deliver the anticipated results for those seeking a puppet Chief Justice.’
* 'A Matter of Justice', Legalbriefs, 19 January 2021