Why Lenaola, not Mwilu, should succeed Maraga

Under normal circumstances, one would expect Deputy Chief Justice Philomena Mwilu would be a leading candidate to succeed Maraga

In Summary

• The position of Chief Justice and president of the Supreme Court requires someone who is incorruptible.

•  The position also requires someone who knows how to bark and effectively keeps the President and Parliament in check

Chief Justice David Maraga
Chief Justice David Maraga
Image: PSCU

Chief Justice David Maraga, who is also the president of the Supreme Court, is constitutionally expected to retire on January 12, 2021, when he turns 70.

Under normal circumstances, one would expect Deputy Chief Justice Philomena Mwilu would be a leading candidate to succeed him.

However, this will likely not be the case because Justice Mwilu is currently battling a petition before the Judicial Service Commission challenging her suitability to serve as a judge over a graft case. Because of this, Justice Mwilu no longer sits on the bench, making it even less likely she will be considered for the CJ position.

 

Also, given the petition was filed by the Director of Public Prosecutions and the Directorate of Criminal Investigations, one can make a compelling case that regardless of the outcome at JSC, Justice Mwilu cannot be a suitable successor to CJ Maraga.

The position of Chief Justice and president of the Supreme Court requires someone who is incorruptible and unencumbered with even the slightest doubt as to their honour and integrity. The position also requires someone who knows how to bark and effectively keeps the President and Parliament in check, or otherwise away from meddling in matters strictly pertaining to the court.

Maraga has clearly lived up to the first prong of this requirement, but he has been the victim of State House mischief, initially intended to punish him and the court for the historic nullification of the 2017 presidential election. In recent attacks, it has been simply a matter of misplaced politics and confusion.

When former Chief Justice Willy Mutunga took the helm at the Judiciary, he was supposed to bring with him and the new court an aura of freshness, impartiality and cleaning up and unclogging the previously rotten justice system.

Mutunga left with a dented legacy after presiding over arguably the court’s worst decision in the country’s history. That was the 2013 decision to throw out Raila Odinga and Africog’s petitions challenging the declaration of Uhuru Kenyatta as President in 2013.

Many feared from that day on, the Judiciary had once again fallen back to being an extension of the Executive, as opposed to being an independent arbiter of truth and justice consistent with facts and law, as we had hoped would be the case following the promulgation of the 2010 Constitution.

Fortunately, however, we saw the elevation of Maraga as the new CJ to succeed Mutunga in 2016. Along with him, we had justices Isaac Lenaola, Njoki Ndung’u and Mwilu, bringing new hope and aspiration for the court.

 

The question now is who should succeed Maraga?

It is noted above Justice Mwilu cannot be in contention. This leaves Justice Lenaola as a natural substitute because has what it takes to head the Judiciary. You’ll be hard put to find anyone who objectively disagrees.

Other than that, the following should be a good guide in selecting a suitable successor and make us happy:

Someone who is already serving as a judge — forget this notion of bringing an outsider as was the case with Mutunga because it’s demoralising for the rest of the Judiciary besides risking having someone punish the country with their injudiciousness owing to their lack of experience on the bench.

Someone with solid jurisprudential prowess as proven by their track record.

Someone who is incorruptible, fearless and character that cannot be impeached.

Someone with enough political skill and ability to aggressively defend the Judiciary without getting it or themselves dirty.

Someone who is older such that they do not expect to be at the helm forever — ideally in their 60s so they retire at 70.

Should the JSC follow these simple guidelines, they should present a candidate who fits the bill for the President to appoint for the good of the country.

Samuel Omwenga is a legal analyst and political commentator