Kenya: Battle Shifts to Wako’s Successor

Nairobi Star (Nairobi)

Paul Ilado and Nzau Musau

17 June 2011

The replacement of Attorney General Amos Wako is the new battlefront between the coalition partners ODM and PNU following the setting up of the Supreme Court yesterday.

The Star learnt yesterday that the PNU side is pushing for the appointment of Pro Githu Muigai while the ODM side is yet to give a name of its preferred nominee. “Our first choice is Githu. Second choice Githu. Third choice Githu,” said a senior official in the Office of the President yesterday.

Wako is due to leave office in August. The first time President Kibaki nominated Githu to be Attorney-General, Raila rejected his nomination together with that of Alnashir Visram as Chief Justice and Kioko Kilukumi as the Director of Public Prosecution saying he was not consulted.

Sources say President Kibaki and Prime Minister Raila Odinga may agree on one name and forward it to Parliament or they may refer the recruitment process to a panel. So far there has not been any agreement between the two on any name or even the process to follow.

Sources said Wako is quietly campaigning for the position of Senator for Busia County, although he has not openly declared his candidature.

Yesterday the two principals, despite protests and threats of court action, pulled a historic act by appointing the judges of the Supreme Court of Kenya. They are expected to be sworn in today.

The five – Justice Philip Tunoi, Justice Jackton Ojwang’, Justice Mohammed Ibrahim, Njoki Ndung’u and Dr Smokin Wanjala – become the first Supreme Court judges in Kenya.

The Supreme Court will not only hear presidential election petitions but will also review past judgments in the first two years of its operation. It will also determine appeals from the Court of Appeal and any other tribunal.

The five were recommended by the Judicial Service Commission (JSC) on Wednesday following a competitive recruitment exercise which entailed public interviews and submissions. “Upon recommendation of the JSC and after due consultations and subject to Articles 166(1) (b) and 163(1)(c) of the Constitution, it has been agreed that the following be appointed as Judges of the Supreme Court,” a Presidential Press Service announcement stated.

Article 166 (b) says that the President shall appoint all judges on recommendation of the JSC. Only the appointment of two judges – Chief Justice and Deputy CJ, both who will sit in the Supreme Court – is subject to parliamentary approval.

Article 163 (1) (c) says the Supreme Court will comprise five judges in addition to the CJ and Deputy CJ. The two principals had to consult because Section 29 of the transitional clauses on new appointments bids them to do so. The CJ and the Deputy CJ were approved by Parliament on Wednesday night paving way for a formal appointment by the two principals.

Yesterday the appointments were opposed on gender basis with Federation of Women Lawyers threatening court action. They were also opposed on the same grounds by the International Centre for Policy and Conflict.

According to FIDA-K chair Naomi Wagereka, both the principals and the JSC had violated Article 27 (8) and Article 172 (2) (b) in appointing “only one woman” to the court. She said FIDA is not only shocked but also deeply disappointed by the action.

Article 27 (8) says that the state shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.

Article 172 (2 (b) on the other hand says that in performance of its functions, the JSC shall mind the promotion of gender equality. “We will not hesitate to move to court on this matter because it’s not only a blatant violation of the constitution but also a further demonstration of the patriarchal society in which we live,” Wagereka told the Star.

For ICPC’s Ndung’u Wainaina, the appointments also violate Article 10 of the constitution which provides for equality, non-discrimination and protection of the marginalized in interpreting and implementing the constitution.

Wainaina said the JSC made the recommendation in full knowledge of the violation since one of its members – Titus Gateere had expressed past fears on the gender requirement.

Wainaina reminded the authorities that Justice Daniel Musinga’s ruling earlier in the year on the initial appointment was another red flag since he condemned the appointments on gender basis.

As the new controversy boiled, the new CJ who is waiting a procedural appointment by the President, Dr Mutunga issued a statement in which he thanked all and outlined his course of action once he assumes office. “Obviously, my greatest challenge will be to manage the astronomical expectations of a Kenyan people who long lost their faith in their Judiciary but now believe I wave a magic wand,” said Mutunga who endured a rigorous questioning on his moral values.

He said the issue of people’s lack of faith in the institution of Judiciary is an issue he “must” address once he takes his oath under the constitution. He also said he looks forward to talking to Kenyans immediately he is sworn in.

Mutunga said he cannot forget the many Kenyans who prayed for and supported his nomination to the office of CJ: “I cannot forget the many other Kenyans who made propositions to the parliamentary committee during my confirmatory hearings whether or not they did so in my support.”

He thanked the JSC for carrying out interviews in a transparent manner, the two principals for nominating him with unanimity, Mohammed Abdikadir’s committee for a judicious hearing they accorded him and the plenary of arliament for “finally approving” his appointment.

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