Days after David Maraga retired as Chief Justice, details are emerging of how the deep state is shopping for a candidate to head the Judiciary and the Supreme Court, that will decide the presidential election in 2022 if a petition challenging the results is filed.
The deep state wants an assertive and pro-establishment figure who will improve the links between the Executive and Judiciary that were tattered during Maraga’s seven-year reign.
The Chief Justice will be picked by the Judicial Service Commission whose membership, with the exit of Maraga, heavily tilts towards Uhuru Kenyatta.
The JSC members are Deputy Chief Justice Philomena Mwilu, Justice Mohamed Warsame (Court of Appeal), Emily Ominde (commissioner/chief magistrate), Mercy Deche (advocate), Patrick Gichohi (Public Service Commission), Olive Mugenda (public), Paul Kariuki (AG), Felix Kiptarus (public), Macharia Njeru and Justice David Majanja (High Court).
Insiders revealed that the state does not want a repeat of the 2017 polls fiasco where Maraga led the bench in annulling the election of Uhuru as president.
The ruling by the four judges annulling Uhuru’s win almost set the country on fire after the National Super Alliance that had filed the petition boycotted the repeat presidential election, demanding electoral reforms.
According to insiders, the state has recommended the three judges who alongside Maraga nullified Uhuru’s win be knocked out of the CJ’s succession race for being unreliable.
Those who concurred with Maraga included Deputy Chief Justice and currently acting CJ Mwilu, Smoking Wanjala and Isaac Lenaola.
Justice Njoki Ndung’u, together with Jackton Ojwang, who has since retired, dissented but the majority carried the day.
Justice Mohammed was unwell during the hearing of petition.
For Justice Mwilu, she is also battling accusations of forgery and abuse of office which again complicates her chances of succeeding Maraga.
According to sources, the state is toying with the idea of fronting someone from Rift Valley to replace Maraga. The idea is to woo back the Kalenjin community, who feel sidelined following the current happenings surrounding William Ruto and his allies.
Insiders added that the state has recommended Justice Lenaola be nominated to head the Independent Electoral and Boundaries Commission to replace embattled Wafula Chebukati ahead of the 2022 elections.
Chebukati is suspected to be an ally of Ruto.
Initially, the state had toyed with the idea of fronting Ndung’u, Attorney General Kariuki or his predecessor Githu Muigai for the CJ’s position.
With Uhuru being accused of tribalism in key state appointments, having a Kikuyu CJ is bound to complicate matters for him. Further, the Kalenjin community has never produced a Chief Justice.
But the idea to front Justice Ndung’u was dropped on gender grounds as Justice Mwilu is expected to retain her post unless found guilty by the court. The reasoning is that it would have not augured well to have a female CJ and female deputy. For Lenaola, age is still on his side.
The idea to front AG Kariuki or his predecessor Muigai was also dropped as it would have contradicted the unwritten rule guiding the composition of the Supreme Court by ensuring fair regional representation.
The rule recommends the Supreme Court reflects the face of Kenya in judges’ appointments.
In the present scenario, Justice Mwilu represents Eastern, Justice Ndung’u (Central), Justice Smokin Wanjala (Western), Justice Lenaola (Rift Valley) and Justice Mohammed Ibrahim (North Eastern or minorities).
Justice Maraga and Justice Ojwang represented Nyanza (Kisii and Luo Nyanza respectively) but this was an anomaly that is being corrected.
It is the regional balancing act that forced the state to drop the idea of fronting Kariuki, Githu or Court of Appeal Justice Martha Koome as it would have entailed dropping Justice Ndung’u from the Supreme Court bench to accommodate any of them.
The sources added that Court of Appeal president William Ouko is set to be elevated to the Supreme Court to take the position left vacant after Justice Ojwang retired.
The move will pave way for a Kalenjin to assume Maraga’s post with Mwilu as deputy and Wanjala, Lenaola, Ibrahim, Ndung’u and Ouko as judges.
Insiders added that the idea to have a Kalenjin has been discussed by Uhuru, ODM leader Raila Odinga and Baringo senator Gideon Moi, who are all in agreement.
The said senior Kelenjin lawyer being groomed organised the hosting of Maraga by senior counsel members for a party at Serena Hotel.
Those present included Wiper Party leader Kalonzo Musyoka, Rarieda MP Otiende Amollo and former Mandera Central MP Abdikadir Mohamed.
The lawyer’s growing influence in the Uhuru’s administration was also evident when he played a pivotal role in the burial of constitutional lawyer Nzamba Kitonga who was accorded a state funeral in honour of his immense contribution to the drafting of the constitution of Kenya, 2020.
He was in the team headed by Fred Ojiambo with other members being the Attorney-General, Interior cabinet secretary Fred Matiang’i, secretary for National Administration Arthur Osiya and LSK chief executive Mercy Wambua.
The senior counsel is said to have joined Uhuru at State House on the day Kitonga’s death was announced, where the president made a call to Raila, who was in Dubai, to break the sad news.
The sources added the said lawyer also played a key role in ending the standoff over conferment of senior state counsel titles to 24 advocates, a matter the Law Society of Kenya had taken to court.
The president had announced the conferment of senior counsel status on 24 lawyers prompting the LSK to ask Maraga not to list them in the roll of senior counsel, citing illegalities in their nomination.
Those conferred included Kalonzo, Narc Kenya leader Martha Karua, Amollo, former Mombasa mayor Ali Taib, Judy Thongori, Kioko Kilukumi, public prosecutions secretary Dorcas Oduor, Fred Ngatia, Mohamed Nyaoga, Albert Mumma, Beutta Siganga and Kiragu Kimani, among others.