What Jubilee’s Judicial Service Commission appointments really mean

Supreme Court judges at a past court session. More than 20 cases are held up in the Supreme Court after three judges withdrew their services in protest against a decision to send home colleagues who have attained retirement age of 70 years. FILE PHOTO | EVANS HABIL |

What you need to know:

  • A possible explanation is that the Jubilee leadership wanted its own people.
  • Since Jubilee enjoys a majority in the National Assembly, the nomination of Ms Guchu and Mr Korir is likely to be easy.

In a move seen as the boldest attempt by the Jubilee government to exert long-term control over the Judiciary, President Uhuru Kenyatta has nominated Ms Winnie Guchu and Mr Kipngetich arap Korir as members of the Judicial Service Commission.

Ms Guchu and Mr Korir are to fill the two positions, one for a man and the other for a woman, that are reserved for the general public.

All other members are either elected by stakeholders, such as judges who are elected by fellow judges, and lawyers by fellow lawyers, or serve by virtue of the positions they hold in public office, such as the Attorney-General and the representative of the Public Service Commission.

Ms Guchu will replace Prof Christine Mango, who retired from the JSC in 2013. There has been a delay of more than a year in filling the vacancy created by her retirement.

Mr Korir will take the place of Rev Samuel Kobia, whose unexpected retirement from the JSC remains unexplained.

President Kibaki appointed him to the JSC in August 2011 for five years. He was, therefore, not due for retirement until August 2016.

There is an evident rush in the process that will lead to a parliamentary approval for Ms Guchu and Mr Korir.

The National Assembly issued a two-day notice inviting views from the public on the suitability of the two candidates for appointment to the JSC. The fact that the actual public hearing of their nomination proceedings is an hour apart this week, indicates that the parliamentary committee anticipates the shortest hearing process.

While Mr Korir has not featured much in public life, Ms Guchu was a member of the Interim Independent Electoral and Boundaries Commission and, thereafter, served as the chief executive officer of The National Alliance (TNA), the party under which Mr Kenyatta entered into an agreement with Mr William Ruto’s United Republican Party (URP), to form the Jubilee Alliance.

Together with Mr Davis Chirchir, her counterpart in URP, Ms Guchu played a prominent role in the 2013 elections, most notably in the election petitions filed to challenge the declaration of Mr Kenyatta as President. The affidavits that Jubilee filed in court during the election petitions were sworn in her name.

During the petition, the Supreme Court ordered the re-tallying of the presidential ballots. On behalf of Jubilee, Ms Guchu and Mr Chirchir kept vigil at re-tallying centre at the Kenyatta International Conference Centre.

Mr Chirchir was, thereafter, appointed Energy Cabinet Secretary, and is seen as a close ally of the deputy president, while Ms Guchu has now landed in the JSC.

TERM ENDS

The Chief Justice, Dr Willy Mutunga, will attain the retirement age of 70 in June 2017, while Deputy Chief Justice, Kalpana Rawal, who is thought to be 69, will reach retirement age this year.

A third member, Justice Philip Tunoi, who has already reached 70, disputes the application of this retirement age to him, claiming he was appointed under the old constitution which allowed a higher retirement age of 74.

He claims this to be his proper retirement age, and remains in office because of orders obtained in a suit he has filed challenging the retirement. If he loses the suit, his position will also come up for filling.

There are indications that Justice Mutunga is prepared to bring forward his retirement, to the end of 2016, so as to avoid a situation where the country may be going through the process of appointing his successor while also preparing for, or in the middle of, the 2017 elections.

Except the CJ and his deputy, whose appointment is subject to parliamentary approval, all other judges, including the justices of the Supreme Court, are effectively appointed by the JSC, with the President playing only a ceremonial role by declaring them formally appointed.

Also, the JSC plays an important role in cushioning judges from political interference. An establishment-leaning JSC stifles judicial independence while an independent JSC is an important psychological anchor for judicial independence.

The nomination of party stalwarts to the JSC is seen as an attempt by Jubilee to maximise its influence over the Judiciary. The nomination of Ms Guchu is a strong indication that the Jubilee administration seeks to control the Judiciary by maximising its influence over the body and, therefore, over the judicial appointments that are expected in the next 18 months.

The Supreme Court plays the key role of determining disputes resulting from the election of the President. As seen in 2013, when the court had to address electoral disputes resulting from the declaration of Kenyatta as President, the court is a critical actor in national politics.

It is thought that the Rev Kobia was prevailed upon to take an early retirement to create two vacancies for the President to fill. There are two possible explanations for this situation.

The first is that the Jubilee leadership wanted its own people, as opposed to those appointed by President Kibaki, in the JSC as soon as possible and Rev Kobia was therefore asked to make way to allow this to happen.

The second interpretation is that there is intense rivalry between TNA and URP, with neither willing to put its trust in the other as the 2017 election approaches.

The two, unable to agree on a compromise candidate for the sole vacant position, decided to overcome the stalemate by creating a second vacancy in the JSC.

The one-year delay in filling the vacancies, and the choice of their co-ethnics, makes this interpretation the more plausible.

Since Jubilee enjoys a majority in the National Assembly, the nomination of Ms Guchu and Mr Korir is likely to be easy.

However, their nomination is a major statement that Jubilee is not prepared to be reasonable any time soon, that the country has a difficult political future ahead, and that the 2017 elections will not be easy.