President Uhuru Kenyatta’s power in deciding the next Chief Justice was yesterday taken away before he could exercise the prerogative of picking Willy Mutunga's successor.
A five-judge Bench comprising Richard Mwongo, Isaac Lenaola, George Odunga, Mumbi Ngugi, Weldon Korir and Joseph Onguto declared the new law unconstitutional.
It had sought to compel the Judicial Service Commission to forward three names for the position of CJ and deputy to the President, from which he was at liberty to make his choice.
“To the extent that the amendment compelled the JSC to send three names the said amendment is null and void," the court held.
The effect of the court’s decision is that the JSC will now forward a single name each of candidates for the positions of the CJ and deputy CJ to the President for him to appoint.
Law Society of Kenya President Isaac Okero said the unanimous decision is an important affirmation of the supremacy of the constitution.
The opposition has lately accused the President and Jubilee of being keen to control the Legislature and the Judiciary.
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“It also affirms the importance of maintaining the independence of the Judiciary and in particular the integrity of the process by which the head of the Judiciary is selected,” Okero said.
The judgment comes less than a month to the retirement of current CJ Mutunga, whose last day in office is June 16. The JSC has already indicated that it will take four months to hire his replacement, meaning the earliest the country can have a new CJ is October.
The position will be open to serving and non-serving members of the Judiciary, be they judges, magistrates, lawyers or persons drawn from the academia or corporate fields.
A number of judges are already strategising on fronting one candidate to be the next CJ. The names of judges so far mentioned as likely candidates to replace Mutunga are Paul Kihara, Msagha Mbogholi and Lenaola.
The advertising for, shortlisting, interviewing and selection of the successor will take four months as per a schedule released by the JSC.
There has been both political and ethnic as well as gender lobbying and canvassing as interested parties seek to influence the outcome of the Mutunga succession.
But as judges and senior lawyers quietly lobby for the position, a group of judges appears to have convinced Justice David Maranga to go for the position.
The Star has established that after being persuaded by friends in the legal fraternity, Maranga had acceded to their requests, once the position is declared vacant.
The Kisumu-based Court of Appeal judge is viewed as independent and a stickler for the rule of law, thoroughly reflective and devoid of ethnic godfatherism and political embedment. He currently chairs the tribunal investigating suspended High Court judge Joseph Mutava.
Others said to be eying the position include Attorney-General Githu Muigai, Supreme Court judges Smokin Wanjala and Njoki Ndung'u, former chairman of the Constitution Implementing Commission Charles Nyachae, former Speaker of the National Assembly Kenneth Marende and the dean of students at the University of Nairobi's School of Law, Prof Patricia Kameri-Mbote.
During the four months of recruitment of a new CJ the law provides that the current deputy Chief Justice steps in and assumes the office and performs the duties for a period not exceeding 6 months.
The current DCJ who is expected to step in is Kalpana Rawal. She, however, has a case pending before the Court of Appeal challenging a High Court order requiring her to retire at 70. Also challenging the same order is the senior-most Supreme Court judge, Philip Tunoi.
And in the event the Court pf Appeal, which is expected to deliver its verdict this morning, says the judges should go home at 70, this effectively locks out both Rawal and Tunoi from the race for the office of CJ.
However, the law is silent on who should then step in if the DCJ is unable to step in. Then that will throw the Judiciary into crisis on who should stand in, meaning the country could go for four months without a CJ.
Nullifying the new law yesterday, the five judges noted that Parliament, in amending the original provision of the law and sneaking in the new requirement for submission of three names, used a short cut to give the President powers he did not have under the constitution.
Their judgment arose from a case filed by the Law Society of Kenya challenging the new law on the grounds that it contravenes the constitution and there was no public participation as required by law.
The National Assembly made the amendments to the Judicial Service Act on December 1 2015 and shortly afterwards it was assented to by President Kenyatta, becoming law.
According to LSK the amendments are meant to achieve a collateral purpose of limiting the independence of the JSC and the Judiciary.
And yesterday the five judges noted that Parliament, by making changes to what was initially debated, introduced major changes to the new law and as such what it passed was not what the public debated.
This action of Parliament, according to the court, is an attempt to circumvent constitutional provisions that allow public participation in the law-making process.
The judges noted that Parliament, through its actions, sought to take Kenyans back to the dark days where appointment of judges was not done independently by the JSC. With the passing of the new constitution, Kenyans sought to protect the independence of the Judiciary.
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