CJ Maraga wants BBI proposal on Judiciary Ombudsman dropped

Chief Justice David Maraga has asked the BBI secretariat to drop proposals seeking to have a Judiciary Ombudsman.

Maraga said the proposal is a direct conflict and duplication of roles between the ombudsman and Judicial Service Commission.

He said the risk of parallel complaints being instituted with the JSC, as well as the Ombudsman adds the possibility of different decisions being arrived at and may result in a constitutional quagmire.

"It is for this reason that the JSC recommends among other others, the structure and functions of the Ombudsman as proposed by the BBI report under the Constitution of Kenya Amendment Bill 2020 be abandoned," Maraga said.

Maraga said instead the Judiciary Ombudsman must be appointed by the Judicial Service Commission with a mandate to conduct investigations and the report be forwarded to the JSC which will take appropriate action as authorized by the Constitution.

Flanked by other JSC officials, Maraga said the Office of the Ombudsman should also be enhanced strengthened and made accessible to members of the public.

"Of greater concern is the fact that there already exist other alternative channels such as the Office of the Judiciary Ombudsman under the Commission on Administration of Justice through which the public can voice complaints about meaningful independence of the Judiciary," he said.

"There should also be no uncertainty or confusion about the complaint and the removal mechanism."

Part of the proposals also seeks to enhance the number of executive appointees in the JSC from four to five.

But Maraga said such a move would be contrary to the spirit of the 2010 Constitution.

"Such a move will only serve to erode public confidence in our commission that was pumped before 2010 as no longer regarded as truly independent so that the Judiciary is seen as vulnerable to government pressures," he said.

Maraga said though the BBI secretariat has indicated that the window for making amendments to the bill has expired, the JSC will still send them a copy of the recommendations.

"We are making our positions clear, if they choose to ignore it, the public knows the position of the Judiciary," he said.

A silent but stormy battle for the control of the Supreme Court has erupted as Chief Justice David Maraga leaves office on Friday.

Justice Maraga who sits at the commission is expected to proceed on terminal leave on Friday, pending his retirement on January 12.

Deputy Chief Justice Philomena Mwilu is tipped to become acting CJ.

As the Judiciary's second in command, Mwilu is the most formidable frontrunner in the race to succeed Maraga who officially retires next January.

However, the battle to succeed Maraga could expand to include both insiders and outsiders.

Court of Appeal president William Ouko, Court of Appeal judges Martha Koome and Wanjiru Karanja are some of the judges also seen as possible replacements.

Given his current position, coupled with long and rich experience serving in positions within the Judiciary, Ouko could be among the front runners. 

Koome is also an experienced hand and was among the judges who applied for the job in 2016.

Outsiders who could be salivating for the job include law professor Makau Mutua. Mutua, the first African to become dean of a law faculty in the US, is a formidable legal scholar. From 2008-2014 he headed the State University of New York School of Law in Buffalo.

He applied for the job in 2016.

In the 2016 recruitment, Maraga defeated Justices Smokin Wanjala, Alnashir Visram, Roselyne Nambuye, Mbogholi Msagha and Philip Nzamba Kitonga to get the top job.

The Star has established that the JSC -  the statutory body that employs judicial officers - could only allow Mwilu to act as CJ once Maraga formerly retires on January 12.

Compiled by Susan Muhindi, Patrick Vidija and Nancy Agutu.