A New Dawn For The Judiciary
The last month saw the Judicial Service Commission (JSC) become a beehive of activities as they engaged heavyweight legal minds including judges and legal scholars in interviews that would see the reconstruction of the Supreme Court of Kenya. This was due to vacancies that had been occasioned by the retirement of the CJ, Dr Willy Mutunga. Additionally, his deputy Kalpana Rawal and the third in seniority, judge Philip Tunoi had been technically removed from office following a refusal by the Supreme Court majority sitting to adjudicate on their retirement age cases, thus rendering the Court of Appeal's decision final. The Court of Appeal had ruled that the retirement age of Judges is at 70 years. The JSC is currently working on legislation to be discussed in Parliament setting the age of retirement of the Deputy Chief Justice as that of the Chief Justice.
The constitution requires the Supreme Court judges to be seven. However, it is properly constituted for the purposes of its proceedings if it is composed of five judges. The previous Supreme Court, led by Chief Justice Willy Mutunga was accused of never producing any worthwhile jurisprudence that could set a precedent for lower courts. In fact the previous supreme court was dogged with scandal from the get go- from the 2013 presidential petition to the various corruption scandals involving some of the judges therein. As earlier stated the survivors of that currently sitting bench include Justices, Mohahmed Ibrahim, Ojwang, Dr. Smokin Wanjala and Lady Njoki Ndung'u. The appointments come at a time when the judiciary has received a backlash and lost public confidence due to corruption, a plague that is widely entrenched in many State institutions.
Justice Maraga having stood out as the best candidate for Chief Justice based on his integrity, experience in both the legal private practice and on the bench, good temperament, his independence and ability to co-ordinate Judiciary affairs. Justice Maraga also emphasized his Christian ethics as a guiding beacon in his life. Justice Maraga is 64 years old. The Chief Justice position has an age limit of 70, meaning he will only serve for six years before the constitutional term of ten years expires. The commission will have to interview applicants for his replacement when this time comes.
Other appointees include Justice Philomena Mwilu, who has had experience in various capacities for over 32 years. She had served as a High Court Judge and Court of appeal judge prior to her nomination as Deputy Chief Justice.
The Maraga led bench has faced sharp criticisms on failing to meet the two-thirds gender principle in the constitution of the Supreme Court,A Constitutional requirement for all public appointments. This arose with the outcome of Justice Isaac Lenaola as the best candidate and his eventual swearing in as a Supreme Court judge. Justice Lenaola beat a pool of senior judges from the Court of Appeal who had applied for the position to replace retired judge Philip Tunoi. In settling for Lenaola, JSC conformed to the principle of regional balance required in appointments of the Supreme Court Judges. The Justice during interview for the post characterised himself as "liberal and pragmatic" and said he wants to be analytical about issues. Indeed this can be seen during his helm as the lead of the Constitutional; Human Rights division of the High Court.
There is a lot of optimism in the currently constituted Supreme Court. Its apex leaders have now pledged to set systems in place that will end corruption and work towards regaining public interest in the Judiciary. We look forward to jurisprudence that will emerge therefrom.