Recruit the next CJ in a transparent way

The Judiciary is bracing itself for transition as the term of Chief Justice David Maraga comes to an end. Constitutionally, Mr Maraga should retire early next year when he attains the mandatory age of 70. But he is reportedly keen to leave earlier, possibly later this year, to give the Judicial Service Commission (JSC) ample time to recruit his replacement.

Term limits are the hallmark of the changes introduced in the Judiciary under the 2010 Constitution. A Chief Justice can either serve for 10 years or retire at 70, whichever comes first. Besides term limits, the Constitution stipulated several structural and administrative changes to institutionalise its independence.

When the Constitution came into force in 2010, the first institution to go through a reorientation was the Judiciary. Then Chief Justice Evans Gicheru was forced to step down, JSC was created to manage the institution and all judges were taken through a vetting process to determine their suitability. Several judges were kicked out for failing the test.

Justice Maraga, who came into office in 2016 after Dr Willy Mutunga, the first competitively appointed CJ, has had a chequered term. Chief Justice Maraga will be remembered for enforcing the independence of the courts when together with fellow Supreme Court judges, he annulled the election of Uhuru Kenyatta in the 2017 presidential election on account of irregularities. But that was to prove his Achilles heel. It opened a war front between the Executive and the Judiciary, the effects of which are being felt today. Since then, the Judiciary has been subdued through budgetary cuts and resource starvation, which late last year compelled Justice Maraga to take a broadside on the Executive for scheming to kill the courts.

On assuming office, he made an undertaking to clear case backlogs that have become the defining characteristic of the judicial system for years. Case backlogs may have diminished remarkably in recent years but the challenge remains. For now, the critical issue is transition and who takes over from Justice Maraga, a matter complicated by the fact that Deputy Chief Justice Philemona Mwilu is facing graft accusations that lock her out of the race until the matter is resolved.

The critical point is to observe the tradition of competitive recruitment and parry external influences. With the presidential transition coming up in 2022 and given the Judiciary’s pivotal role in determining electoral disputes, political players will be working aggressively to influence the CJ’s selection. JSC must fiercely guard against this and manage the process professionally.