Two feuding camps have emerged in the judiciary as the battle to succeed 69-year old Chief Justice Willy Mutunga heats up and gets vicious.
One group wants Mutunga, due to retire in June, to stay on for a year while the other has pledged to do everything it can to force Mutunga out by June. It is believed the second group is behind a petition to remove Mutunga, which was filed yesterday at the Judicial Service Commission yesterday.
The CJ and the constitution of the seven-member court will be crucial during the August 8, 2017, general election, especially if the presidential results are disputed and the court must determine the winner.
Mutunga has been outspoken about corruption in politics and the judiciary itself. In an interview in January he cited a "corrupt investigating system, a corrupt anti-corruption system, and a corrupt judiciary.”
The emerging scenario heralds battle of wits and influence between the two opposing sides in the seven-member court.
Whereas those supporting Mutunga’s continued stay boast numerical strength in the Judicial Service Commission, the opposing group appears to enjoy immense political power, influence around the judiciary and money.
This second group wants one of their own to take over, as is common practice in Commonwealth jurisdictions for “purposes of institutional memory, stability and continuity”.
The group is pushing for popular High Court Judge Isaac Lenaola.Their second option is President of Appeal Court Paul Kihara, while Justice Musagah Mbogoli is their third option.
The pro-Mutunga group wants either Supreme Court judge Smokin Wanjala or Attorney General Githu Muigai.
Ideally, Deputy Chief Justice Kalpana Rawal would have been the automatic successor but the constitution has locked her out because she has reached the retirement age of 70.
Justice Philip Tunoi is the seniormost judge on the court but his chances have diminished because he is 70 years old and faces corruption allegations.
Three other Supreme Court judges — Njoki Ndungu, Prof J.B. Ojwang and Mohammed Ibrahim — are facing accusations of gross misconduct. There is, however, no complaint against Justice Wanjala who is now seen as front-runner to succeed Mutunga.
The CJ took over the judiciary in June 2011 and has decided to retire early. But those determined to see him out are not taking any chances.
Yesterday they filed a petition with the Judicial Service Commission, Mutunga's removal two months before he retires.
The petition signed by "concerned citizen" Duke Nyabuto, wants Mutunga — chairman of JSC and the president of the Supreme Court — removed for breaching the constitution, the Judicial Service code of conduct and ethics and lack of integrity and good judgement.
“It is unfortunate that the CJ who was the symbol of the much-needed change required of the judiciary, is now the main culprit for its perceived failures. He is not suitable to continue holding office of judge,” Nyabuto said.
Nyabuto now wants the JSC to determine whether it is proper to have a CJ who has committed a felony by having two different dates of birth on official government documents.
According to the petition, Mutunga's date of birth on his national identity card is as June 16, 1947, while his passport bears the date of June 16, 1946 — one year's difference.
“This is a clear indication of misrepresentation and possibly a criminal offense on his [Mutunga's] part,” Nyabuto says in the petition.
Mutunga has indicated his desire to retire early, in June this year before attaining 70 years, the mandatory retirement age of a judge. If this claim were to be proved, it means Mutunga may have presented wrong information to his employer “because he will be 70 in June anyway, so there is no early retirement as he is claiming.”
The CJ is also on spot for disregarding the Treasury's written advisory. On several occasions, he is claimed to have directed the the JSC to approve irregular payments as directed by JSC's Finance and Administration committee, which violates the Public Finance Management law.
The petitioner also wants Mutunga kicked out for failing to provide leadership as the CJ and the president of the Supreme Court by allowing a petition against three Supreme Court justices who went on strike.
“He should have clarified to the nation that there was indeed no such strike,” he said.
The petitioner is also basing his grounds on the report of the National Assembly Public Accounts Committee that found the CJ to have been a beneficiary of irregular salary advances amounting to Sh1,564,440. The report went on to declare him incompetent.
The petition further wants a determination whether it is proper to have a CJ who "cavorts with persons neither members of the bench nor the JSC and hatches schemes as war strategy, to prejudice and sabotage the effective and expeditious administration of the business of the courts".
Nyabuto alleges that while declaring himself the “general” of the “war council”, Mutunga conspired in email conversations against certain members of staff and the judiciary.
“He purported to discuss in the emails a judgment of the High Court concerning the suitability of then-EACC chairman Mumo Matemu with non-judicial officers, knowing very well that the matter was likely to come before Supreme Court, that he presides over," the petition says.
Mutunga has publicly denounced and disassociated himself from the emails, saying his account had been hacked into and he had reported this to the Directorate of Criminal Investigations. According to Nyabuto, no investigations have been completed and the results made public.
Allegations of dishonesty and lack of transparency have also been leveled against the CJ.
“Mutunga received an affidavit alleging gross misconduct and corruption against Justice Tunoi in November 2014 and inexplicably held onto it for more than a year ,only to make it public after the maker of the affidavit went before the press,” the petition says.
Mutunga's own admission of instances of bribery during the elections of the representatives of judges and magistrates to the JSC and his failure to take action is also cited.He is faulted for improperly establishing benches of the Court of Appeal in matters he has an interest.