TIBIM: How State nearly bungled CJ appointment

After the not so animated interviews of 12 candidates for the position of Chief Justice of the Republic of Kenya, the Judicial Service Commission retreated to The Hague to deliberate on who will succeed Willy Mutunga.

The choice of The Hague was partly informed by the fact that Commissioners Prof. Githu Muigai and Prof Tom Ojienda were part of the legal team that was representing Kenya in the maritime dispute with Somalia at the International Court of Justice that was being heard the same week JSC was supposed to deliberate and nominate one candidate.

Sources privy to the on goings at The Hague indicate that the Commissioners unanimously settled on Justice David Maraga having performed way ahead of the rest.

Having settled on their nominee, the JSC members jetted back to the country on Wednesday evening with an intention of announcing to the public their nominee on Friday. This was not to be. The same Wednesday while the Commissioners were airborne, the Tribunal investigating Judge Joseph Mutava was at State House handing over their report to the President.

The Tribunal headed by Justice David Maraga had recommended to President Uhuru Kenyatta that the judge be removed from office for misconduct. This sent shivers down the spine of pro-establishment cadres in the Judiciary and the situation worsened when word went around that JSC had settled on the same Justice Maraga to head the Judiciary.

A process was activated to have the JSC relook into their verdict as the Judiciary gatekeepers though initially comfortable with his nomination could not fathom of having an independent head of the Judiciary.

Many felt that the way he had jettisoned Judge Mutava from the Judiciary was just a glimpse of his no-nonsense type of leadership. The powerful group around the Presidency managed to convince the Vice Chairperson of JSC Prof. Margaret Kobia to call for a meeting with a view of nominating another candidate.

Come Thursday morning, having been persuaded, Prof. Kobia started making calls to other Commissioners informing them of the need to have a sitting the same day to relook into their Hague discussions. The pro-establishment Commissioners welcomed the move but another group led by Prof. Tom Ojienda that included Justice Mohamed Warsame, Emily Ominde and Mercy Deche opposed the moved.

Jolted by these calls and knowing what was afoot, the Ojienda group decided to go public on the JSC’s verdict the same day. A press conference was hurriedly convened and addressed by Ojienda. This deflated the momentum of the other group and killed any clandestine plans to have Justice Maraga dropped.

The first battle to have Justice Maraga not occupy the apex position in our Judiciary has been lost. But the anti-Maraga team has crafted a strategy that now encompasses the Civil Society as they take battle royale to Parliament.

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