• With the JSC readying itself to choose Maraga’s successor, it is hoped that the recruitment will be competitive and transparent. Mwilu should recuse herself.
• More importantly, it should give us a CJ who is competent as a legal scholar and a polished administrator who will order lifestyle audits in Judiciary.
On November 4, 2019, Chief Justice David Maraga addressed a press conference in which he addressed weighty matters.
Among the issues he talked about were the unreasonable budget cuts by the Treasury, being treated badly because he did not have a Mercedes- Benz S500 like the speakers of Parliament and was instead stuck with an S350.
On January 8, 2020, he once again called a presser and complained he had tried to meet the President several times in vain. These are just few examples of the public tirades Maraga had against the Executive and even Parliament.
Whereas he may have raised legitimate issues, sometimes this crybaby attitude does not befit a holder of such high office. One would imagine that the Chief Justice would be diplomatically and politically suave in sorting out issues such as a car or calls being ignored by the President. Instead, he chose to play to the public gallery and the Judiciary ended up the worse for it.
On August 28, 2018, the DPP ordered the arrest and prosecution of Deputy Chief Justice Philomena Mwilu.
On May 31, 2019, a five-judge bench, despite finding that the DPP was right to prefer charges against her — at least for obtaining of execution of security by false pretenses contrary to Section 314 of the Penal Code — quashed the charges against her on the basis that the DCI had obtained the evidence unlawfully.
On the rest of the charges, the court said the right forum would have been the Judicial Service Commission, as they could be considered alleged misconduct in her official capacity as then Court of Appeal judge.
The DPP did this and on August 17, 2019, after the JSC dismissed her bias claims against two of its members, she obtained High Court orders barring the JSC from proceeding with the case.
Nearly three years later, the case has never been judged on the merits of the accusations against her. She has successfully managed to use the courts to defeat the course of justice.
Scarier is the fact that she is now the acting Chief Justice and chair of the JSC, which made a determination that she ought to face her accuser — the DPP — before it. She is also now in charge of the process to recruit a chief justice and a Supreme Court judge as JSC chair.
In a scathing article published in February, lawyer Ahmednasir Abdullahi disparaged Maraga’s stay in office, arguing that his tenure was marked by judicial incompetence and political machinations.
While reexamining Maraga’s record within the judicial system, Ahmednasir said the former Chief Justice lacked the academic, professional and social fortitude to deliver within the esteemed chambers of Kenya’s Supreme Court. More troubling, though, was the allegation that he protected judges he knew to have been corrupt.
Whereas Maraga made significant strides in infrastructural development, hiring of judicial officers and was vocal in protesting what he saw as stifling judicial independence, he totally failed to address the deep-seated corruption eating away at the public trust within the Judiciary.
There were judges accused of taking bribes to influence the outcome of cases during his tenure and yet not once were audits conducted on the processes, procedures and judicial officers' lifestyles that propagated such corruption.
With the JSC readying itself to choose Maraga’s successor, it is hoped that the recruitment will be competitive and transparent and more importantly give us a chief justice who is competent as a legal scholar and a polished administrator.
This will help such a candidate to address whatever bottlenecks exists in the Judiciary with class, not another press-loving activist with a penchant for theatrics.The JSC must give us a chief justice who’ll take the war on graft in the Judiciary head-on and restore the much-needed but sorely lacking confidence in the institution.
The best candidate, in this instance, should be a man or woman of personal and professional integrity. One whose name and image is not soiled by allegations of corruption for it is only on this premise that the public will have confidence in their intentions to fight corruption.
In addition, he or she must abhor corruption in word and deed, and this will include decisively addressing the causal factors for corruption within the Judiciary.
It will be especially comforting if the successful candidate, as a matter of urgency, conducts a lifestyle audit for judges and magistrates to weed out corrupt judicial officials. That audit should trickle down to court clerks and other staff who aid and abet corruption in one way or the other.
Processes and procedures are important in the fight against corruption. And while the Executive and Parliament are expected to act within the law, it is paramount that the law and its attendant application facilitate justice as opposed to stifle it.
To this end, addressing the hurdles that prevent the timely adjudication of corruption cases should be prioritised. In fact, there should be better regulations for the fast-tracking of corruption cases to provide the much-needed closure on matters justice for economic crimes.
And while at it, I am troubled by the fact that Mwilu will preside over the recruitment of the Chief Justice, as she has a corruption case against her pending before the JSC.
One would be forgiven for assuming that she would favour those candidates whom she deems could possibly be of help when she finally needs it. Mwilu may not be biased but the perception that she could possibly have self-interest at heart when making decisions is enough for her to recuse herself from the proceedings.
In my opinion, the DCJ is too conflicted to lead a process that could potentially change the face of the JSC in significant ways. In a properly functioning system, she would recuse herself from this responsibility in its entirety except for the administrative functions of the office (like gazetting the vacancies) for which there is no other option.