- Omtatah wants the court to suspend the letter dated December 11 in which Maraga wrote to Mwilu giving her authority to take over office in acting capacity.
- He says Maraga has not cited the law on the basis of which he is purporting to appoint the DCJ to be the acting Chief Justice.
Image: FILE
Human rights activist Okiya Omtatah has challenged outgoing Chief Justice David Maraga’s letter giving authority to his deputy Philomena Mwilu to take over as he retires.
Omtatah who filed a case last week seeking to stop Mwilu from acting as the CJ now says Maraga has no power to appoint his deputy to take over from him.
In a new application, the activist wants the court to suspend the letter dated December 11 in which Maraga wrote to Mwilu giving her authority to take over office in an acting capacity from Friday last week until January 11 when he returns from leave.
“I shall return on January 11, 2021 to formally hand over to you to continue acting as the CJ for a period not exceeding six months or until a new CJ is appointed in accordance with the Constitution,” the letter reads.
However, Omtatah has dismissed the letter by Maraga arguing that there is no law that allows him to appoint Mwilu to take over from him.
“There's absolutely no legal basis for the impugned letter and the Hon David Kenani Maraga has no authority to appoint an acting Chief Justice,” read court documents.
He further argues that Maraga has not cited the law on the basis of which he is purporting to appoint the DCJ to be the acting Chief Justice.
“The letter is unconstitutional for creating the position of acting Chief Justice, a position not contemplated by the Constitution,” Omtatah says.
According to court documents, there is no provision in the Constitution for the DCJ or any other person to act in the office of the Chief Justice in the absence of the Chief Justice.
Omtatah also avers that there cannot be an acting Chief Justice because the Constitution only recognises the Chief Justice appointed in accordance with Article 166(1)(a).
“Any attempt to howsoever create a substantive position of acting Chief Justice, including by statute, and appoint a person otherwise than as contemplated by the Constitution and allow him/her to exercise constitutional functions and powers of the Chief Justice, amounts to the creation of an unconstitutional office and unconstitutional exercise of functions and powers of the constitutional office of the Chief Justice,” Omtatah argues.
He has opposed Mwilu taking over from Maraga on the grounds that she is yet to be cleared by the Judicial Service Commission in several corruption-related cases.
Omtatah wants the court to bar the Judicial Service Commission from appointing Mwilu to act in the office of the CJ unless they clear her of all the corruption allegations against her.
The activist further argues that there are currently four different petitions filed at the JSC seeking to remove Mwilu from office.
“For example, the DPP and the DCI claim in their petition that Justice Mwilu is unfit for public office as she was involved in the irregular sale and acquisition of property including obtaining the execution of a security by false pretense,” Omtatah claims.
Omtatah says he is aggrieved that the commission which is mandated to ensure professionalism of judges is deliberately delaying to determine Mwilu’s matters.
“The petitioner is aggrieved that the JSC, which is mandated to ensure the independence, impartiality, responsibility and professionalism of the courts and judges is dillydallying and pussyfooting, and deliberately delaying to determine this matter either way,” the petition reads.
Edited by Henry Makori