Who will the government Favour: Factors likely to determine selection of CJ
Posted by African Press International on July 31, 2016
GEORGE KEGORO -1 | Jumapili, Julai 31, 2016
There are six candidates for the position of chief justice (CJ) whose interviews start at the end of August. Five of the six candidates are serving judges in various courts.
Justice Smokin Wanjala is a judge in the Supreme Court, while there are three Court of Appeal judges, Roselyne Nambuye, Alnashir Visram and David Maraga.
Justice Mbogholi Msagha is the sole High Court judge among the candidates while lawyer Nzamba Kitonga, who served as chair of the Committee of Experts on the Constitution, is the only candidate who is not a judge.
Different views abound as to what factors will come to play in the selection of one of these candidates as Kenya’s next CJ.
Many analysts believe that the Jubilee Government is not unified in its approach on which of the six candidates to support.
The URP wing is said to be rooting for a candidate who is currently a serving judge while it is not clear whether the TNA side has any preference.
If it is true that the URP leadership has a preference, this is likely to be viewed as being consistent with a more assertive approach that Deputy President William Ruto is currently associated with, which has seen him claim credit for the political fallout within the Orange Democratic Movement in western region.
Mr Ruto’s manoeuvres are said to have unsettled a section of the Jubilee administration, which views his aggressive approach as an attempt to establish an independent power base that would rival that of President Uhuru Kenyatta.
Any view that the URP has a preferred candidate for the position of CJ is likely to be received with the same apprehension with which his political moves have been met, and is likely to break the solidarity of Jubilee-leaning members of the JSC.
The composition of the JSC is 11 members but only nine are available to participate in the recruitment of the CJ.
The CJ’s slot occupied at the JSC is currently vacant, following the retirement of Dr Willy Mutunga, whom the appointment process is seeking to replace.
Justice Wanjala, the representative of the Supreme Court at the JSC, is a candidate and cannot, therefore, participate as an interviewer.
Of the remaining nine members, Ms Winnie Guchu and Mr Kipng’etich arap Bett, the two members that President Kenyatta chose to represent the public interest on the JSC, were appointed with a clear approach of maintaining a URP/TNA balance in representation on the commission.
Following the retirement of Dr Christine Mango at the end of 2013, a vacancy arose in the JSC.
After a delay of more than a year without filling the vacancy, another member of the JSC, Rev Samuel Kobia, unexpectedly retired at the beginning of 2014, thus creating an additional vacancy.
Rev Kobia had been appointed for five years and was not due for retirement until August 2016. President Kenyatta then appointed Ms Guchu, who had been the campaign manager of his TNA party, and Mr Bett to fill the two vacancies.
Within the JSC, Ms Guchu and Mr Bett ordinarily take a common approach and are on the same side with Attorney-General Githu Muigai and vice-chair Margaret Kobia, who are also seen as Jubilee-leaning.
While all four usually work together, they are likely to go separate ways if Jubilee takes an interest on who should be the next CJ but fails to agree on the candidate.
The remaining five members include Justice Aggrey Muchelule, and a magistrate, Ms Emily Ominde, representing the High Court and the magistracy respectively, Justice Mohammed Warsame representing the Court of Appeal and two representatives of the Law Society of Kenya, Mr Tom Ojienda and Ms Mercy Deche.
The three judiciary members are thought to favour an “insider”, a candidate drawn from among existing members of the Judiciary, rather than “outsiders” to the Judiciary while the allegiances of the two Law Society representatives are less clear.
Any of the six candidates who tick the two boxes of, first, being the most popular “internal” candidate, and, secondly, assuming that they will stick together, being the most popular among the four Jubilee-leaning JSC members, is likely to be seen as a frontrunner.
If the Jubilee representatives fail to stick together, that will open up the race. Also, if the four JSC members representing various levels of the Judiciary take an approach that supports an “internal” candidate but fail to agree on who the candidate should be, this again will open up the race.
Other permutations are possible. For example, the two Law Society representatives can team up with a section of the Judiciary representatives and this can produce unexpected results.
Also, since the interviews are likely to be televised, leading to significant media attention, public opinion may play a role and disqualify some candidates while also providing a fighting chance to others that may currently be seen as standing little or no chance.
The fact that the JSC has already alienated the support of a large section of the legal profession and the public in the manner in which it handled the shortlisting process, may yet be a factor in the selection of the CJ.
Having defied public opinion which would have favoured a situation where the JSC interviewed left-leaning candidates like Prof Makau Mutua, even if it had no intention of giving him the job, the JSC will be wary of making choices that increase the perception that it is doing the bidding of the Executive.
Any Executive-leaning candidate may suffer negative public perception and the JSC, which has left itself little room for error, may be forced to make an appeasing choice, just to ameliorate the problems caused by the perception of mismanagement of the shortlist.
In what is likely to be a period of intense scrutiny, favourites may be knocked out by previously unknown facts that may have a disqualifying effect.
There may be realignments within the JSC if for any reason, the going gets tough for candidates currently seen as favourites. This may still be an open race.
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