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Bill seeks to start CJ replacement 6 months before exiting office

In Summary

•LSK boss Nelson Havi in a statement said the bid to amend the law is “selfish and myopic” and one that targets the CJ and Deputy CJ Philomena Mwilu.

•He claimed the two are targeted following the September 1, 2017 majority decision to nullify President Uhuru Kenyatta victory in the then presidential vote.

Chief Justice David Maraga.
Chief Justice David Maraga.
Image: FILE

The Judicial Service Commission will be compelled to begin recruitment of a Chief Justice within six months before the incumbent’s term ends if a proposed bill sails through.

A bill before the National Assembly seeks to provide that JSC begins the process before the CJ’s expected retirement date or expiry of term of the CJ.

The Chief Justice should serve a single 10-year term but mandatorily retire on attaining the age of 70 years.

Chief Justice David Maraga is for instance expected to vacate office by January 2021 on attaining the retirement age.

However, there are upheavals around his replacement with a section of the JSC accusing him of working with forces keen on derailing the process.

Commissioner Macharia Njeru – a representative of the Law Society of Kenya at the commission, raised the concerns in a statement on Friday.

But in what appears to be a move to cure the mischief in the law spelling the transition of justices of the Supreme Court, the National Assembly wants the regime where CJs are replaced after they exit office ended.

“The commission (JSC) shall commence the process of filling a vacancy in the office of the chief justice at least six months before the retirement date or expiry of the term of Chief Justice under Article 167 of the Constitution,” the bill by Justice and Legal Affairs Committee chairman Muturi Kigano reads.

In his memorandum, the Kangema MP argues that the bill seeks to codify the best practice that crucial offices such as that of the CJ should not remain vacant for a long period.

“It is apparent that the JSC can foresee the arising of a vacancy in the office of the chief justice and commence the recruitment process before the date of the actual occurrence of the vacancy,” Kigano said.

In what shows the looming battle in the Maraga succession, the Law Society of Kenya has resisted the attempts to recruit a CJ before Maraga retires.

LSK boss Nelson Havi in a statement said the bid to amend the law is “selfish and myopic” and one that targets the CJ and Deputy CJ Philomena Mwilu.

He claimed the two are targeted following the September 1, 2017 majority decision to nullify President Uhuru Kenyatta victory in the then presidential vote.

Havi took a swipe at Njeru and his LSK counterpart at the JSC saying their positions are unlawful and unconstitutional.

“It cannot be explained why the two commissioners are determined to pursue a cause whose result will be to imperil and dent the credibility of the commission on this matter,” the statement reads.

“The LSK therefore dissociates itself from the position taken by Macharia Njeru and Mary Deche.

The state capture of the Judiciary cannot be executed through representatives of the society to JSC,” Havi said.

He said the LSK is contemplating recalling the two commissioners as its representatives to JSC. “It is evident they don’t serve the interest of LSK or the Kenyan republic.”