The retirement of Chief Justice David Maraga in the just eight months is already triggering high-states succession intrigues.
Questions about as to whether Kenya needs an insider and conservative CJ like Maraga, who shocked the world by nullifying the 2017 presidential election, or a liberal judiciary head.
CJs and other judges, though described as conservative or liberal, often surprise with their rulings once they sit on the bench.
Maraga’s predecessor, CJ Willy Mutunga, widely considered a revolutionary, opened a new chapter when he failed to nullify the disputed 2013 presidential election.
The 2022 General Election is expected to be a fierce battle and an election petition challenging the results is likely. The Chief Justice will play a key role in determining the outcome.
Mutunga’s appointment as CJ in 2011 had been heralded as a new dawn for the country’s justice system given his strong legal philosophy and implacable integrity. He and fellow angered President Uhuru Kenyatta when the election was annulled.
Though a one-sided rerun upheld Uhuru’s victory, the nullification was remembered.
“I think we will most likely get a more conservative chief justice who would be responsive to the dominant political class,” city lawyer Steve Ogolla told the Star.
Ogola said the recruitment of the next CJ would borrow heavily from the Mutunga and Maraga experiences and involve a balance of law and politics.
“A chief justice’s ideology can preserve or disrupt a political agenda. That is why politicians would be very keen on who succeeds Maraga,” Ogolla said.
Maraga’s recruitment in 2016 was preceded by intense political manoeuvres.
The Jubilee Party sought to amend the Judicial Service Act to have the president given three names of the top CJ candidates from which to pick one.
That was to be the case for the DCJ as well.
The move was informed by the fact that the President had no room to manoeuvre once the JSC submitted a single name to him for the appointment.
With the amendment having been felled by the courts, the focus shifted to control the recruitment at the point of interviews.
If Maraga decides to retire earlier like Mutunga, the decision could not only spark vicious succession politics but also jolt the Supreme Court after Justice Jackton Ojwang’ retired on February 5.
Maraga, a deeply religious man, was born on January 12, 1951, and will have attained the mandatory retirement age for judges of 70 years in January 2021.
However, Maraga’s retirement is keenly watched amid claims that senior lawyers, judges and influential politicians have started scheming about who will succeed him.
Powerful individuals are said to be holding secret meetings to strategise on Maraga’s succession, the clock fast ticking down to his retirement.
The CJ holds a powerful position not just as the chairperson of the influential Judicial Service Commission, which employs and pays judges, but also as the President of the Supreme Court.
The seven-judge Supreme Court decides on presidential election disputes, making it an influential organ of the judiciary that attracts a lot of political interest in both its composition and its decisions
The succession is a high-stakes race since DCJ Philomena Mwilu is facing legal challenges over a petition filed at the JSC. She would have scored high as a logical successor.
The petition seeking Mwilu’s removal was filed by the Director of Public Prosecutions and the Director of Criminal Investigations.
If Maraga were to leave early, Mwilu would act as CJ for a maximum of six months to allow the next chief justice to be recruited by the JSC.
In the 2017 Maraga-led Supreme Court, judges Mwilu, Smokin Wanjala and Isaac Lenaola supported the historic invalidation of the presidential election results, throwing the CJ into the spotlight.
This was the first presidential election to be annulled by the Supreme Court not just in Kenya but in Africa as well. It was the sixth presidential result invalidation after Austria, Haiti, Ukraine, Serbia and the Maldives.
Mutunga’s bench in 2013 validated Uhuru’s election as Kenya’s fourth president despite protests from the opposition coalition Cord and a section of civil society.
The invalidation of President Kenyatta’s election in 2017 lifted the lid on the immense power wielded by the apex court and raised the country’s political temperature.
It is against this backdrop that the recruitment of the next CJ, and filling justice Ojwang’s slot, would not just be a judicial process but also a political affair with eyes on the 2022 presidential duel and possible subsequent petition.
One of the intrigues likely to play out in the search for Maraga’s successor would be age, as the CJ appointed next year would serve for a maximum term of 10 years unless he or she retires at age 70 or exits early.
Politicians would not want a CJ who is too young to continue being a Supreme Court judge, even after completing his 10-year tenure. His impact would be long felt and they would likely want to influence the choice of his successor.
That would create two centres of power, with a CJ emeritus on the bench as well as the CJ in office.
When he was appointed CJ, Maraga was age 66, making him legible to only preside over one presidential dispute at the Supreme Court before hitting 70.
Mutunga was appointed in 2011 when he was aged 64. He was born on June 22, 1947. Maybe he wanted to avoid that 2017 petition, some say.
Mutunga and Maraga’s ages on appointment to office expose the deep-seated intrigues involving age.
The appointment of a younger judge as CJ would trigger succession acrimony at the apex court as the holder of such an office would serve a full term of 10 years, ‘holding others back’.
The Constitution states if the CJ’s term of office expires before retirement, the Chief Justice may continue in office as a judge of the Supreme Court.
“If on the expiry of the term of office of a Chief Justice, the Chief Justice opts to remain on the Supreme Court under Clause (3), the next person appointed as Chief Justice may be selected in accordance with Article 166 (1), even though that appointment may result in there being more than the maximum permitted number of Supreme Court judges holding office,” reads Article 167(4).
In February, the JSC indicated in its Medium-Term Framework Report that it would prioritise the recruitment of the Chief Justice in the 2020-21 financial year.
The document published by Judiciary Registrar Ann Amadi was the clearest indication that the JSC was readying itself to hire Maraga’s successor as a matter of priority in the fiscal year beginning July 1.
“To enhance service delivery in the Judiciary, the Commission intends to recruit the next Chief Justice and one Supreme Court judge, 30 superior court judges (High Court, Environment and Land Court, and Employment and Labour Relations Court), 100 magistrates and 300 judicial officers and staff to address case backlog in the judiciary,” Amadi stated in the MTEF report.
There have been claims that Magara could opt for early retirement to allow the JSC to begin the recruitment process well in time for the 2022 General Election.
The CJ’s recruitment is expected to take not less than three months, a lengthy period that analysts say may inform Maraga’s possible early exit, tentatively by October.
Maraga’s predecessor Mutunga left office in June 2016 – a year earlier – kicking off a succession battle that culminated in Maraga’s appointment by President Kenyatta on October 19 that year.
The law requires that the recruitment of a CJ can only begin once the officeholder formally vacates, either at retirement age or in an early exit.
It cannot start even when he is on terminal leave.
This provision that the CJ must formally vacate before recruitment can start has been criticised for hampering certain key offices whose holders wield powers that no other person can have unless they are substantive officeholders.
Former Auditor General Edward Ouko had called on MPs to amend the laws to allow recruitment key State officers to start months before the incumbent’s term expires so there will be no void in the office.
The JSC that will recruit the next CJ is comprised of Law Society of Kenya representative Mercy Deche who deputises Maraga at the commission.
Other commissioners are DCJ Mwilu, Emily Ominde (chief magistrate), Justice Mohamed Warsame (Court of Appeal) and Justice David Majanja (High Court).
Attorney-General Kihara Kariuki is also a commissioner, together with lawyer Macharia Njeru (representing LSK), Patrick Gichohi (representing the Public Service Commission), Felix Koskei (the public representative) and Prof Olive Mugenda (the public representative).
There have been attempts to control the composition of the 11-member JSC to influence the recruitment of the next CJ.
Despite Justice Warsame having been re-elected to the JSC by his Court of Appeal colleagues, external political players tried to influence the process.
Warsame was finally sworn in as a member of JSC on January 23 following a protracted battle between the three arms of government that lasted close to a year