In what will be the biggest test for the handshake, Uhuru Kenyatta and Raila Odinga advisers are rooting for different candidates to succeed Chief Justice David Maraga when he exits the judicial helm early next year.
Maraga has signaled his intention to leave early to take up an international job triggering intense jostling for his position at both State House and Judicial Service Commission. During the burial of former president Daniel Arap Moi, Maraga was conspicuously absent as he was delivering lectures at a Western capital where he had been invited.
Already, the JSC has set in motion the process of recruiting the next Chief Justice by prioritising it for funding in the 2020/21 financial year.
Maraga’s succession is billed as a high-stakes race since Deputy Chief Justice Philomena Mwilu is battling a petition filed at the JSC by the Director of Public Prosecution and the Director of Criminal Investigations demanding her removal over abuse of office.
Another Supreme Court judge, Justice Jackton Ojwang’ retired last month upon attaining the mandatory retirement age for judges of 70 years.
The JSC is currently chaired by Justice Maraga, and is deputised by Mercy Deche, who represents the Law Society of Kenya in the commission.
Other commissioners are DCJ Mwilu, Emily Ominde (chief magistrate), Justice Mohammed Warsame (Court of Appeal) and Justice David Majanja (High Court).
Attorney-General Kihara Kariuki is also a commissioner, together with lawyer Macharia Njeru (representing LSK), Patrick Gichohi (representing Public Service Commission), Felix Koskei (the public representative) and Olive Mugenda (the public representative).
To lock Deputy CJ Mwilu out of the race, those in charge of Maraga succession introduced criminal charges she is fighting in courts to derail her ambitions.
According to sources, Uhuru is under pressure by a section of his handlers pushing for Solicitor General Ken Ogeto to replace his fellow Kisiiman at the highest judicial office.
The team that includes Internal cabinet secretary, Fred Matiang’i and East Africa Court judge, Charles Nyachae argue that Ogeto is the right candidate to lead the Supreme Court after Maraga given his unwavering loyalty to the head of state. Majority of the Kenyatta family are for Ogeto who helped their kin at ICC. In fact the naming of Ogeto as Solicitor was to lay ground to land CJ plum slot.
But the ODM leaders, sources added, is rooting for Supreme Court judge, Justice Susanna Njoki Ndung’u to succeed Maraga as Raila eyes the Mount Kenya votes as a bloc.
Justice Ndung’u was also a student of Raila’s wife, Ida, at Kenya High School in the 1980s where Ida taught Geography.
Ida’s other students included former Mavoko MP Wavinya Ndeti, Siaya senator James Orengo’s wife, Betty Murungi and former Bomet governor, late Joyce Laboso. Njoki was also nominated by Raila party Liberal Democratic Party to parliament during Mwai Kibaki first term presidency.
Maraga was appointed in October 2016 after he emerged tops in the Judicial Service Commission interviews with more than 10pc points above the rest.
He scored an impressive 84pc and was followed by Supreme Court Judge Smokin Wanjala who had 74pc.
Controversial US-based law professor Makau Mutua emerged third with 72pc while Court of Appeal judge Alnashir Visram was fourth followed by former Law Society of Kenya chairman Nzamba Kitonga and Justice Ojwang.
Others interviewed were Court of Appeal judge Roselyne Nambuye, Daniel Waisiko Wambura, a principal administrative secretary in the office of the deputy president and retired judge Aaron Ringera.
According to sources, Uhuru prefers Ogeto to take the seat so that it remains in Gusiiland but Raila on the other hand wants the seat to go to Mount Kenya region since it will be surrendering the presidency once Uhuru’s term comes to an end.
Ogeto, who was among a battery of local and international lawyers representing Uhuru at the International Criminal Court in The Hague, Netherlands, where the head of state faced charges against humanity, is an inner member of the president’s kitchen cabinet.
In 2015 the president appointed him a board member at the Kenya Ports Authority to reward him for defending him at the ICC.
Insiders add that those pushing him to succeed Maraga are pointing at his successes at the State Law Office where he has turned around the department which was moribund during the tenure of his predecessor, Njee Muturi.
They are also arguing that the position should go to a Kisii given that it is unlikely the community will have a presidential candidate in 2022.
Ogeto, who was sworn in as Solicitor General on March 20 2018, briefly worked as a State Counsel before venturing into private practice.
But sources said Raila is citing Ndung’u impressive credentials such as defending democracy and human rights as the ideal traits the next Chief Justice should have besides the gender factor. Kenya has never had a female Chief Justice or Attorney General.
Justice Ndung’u holds both a Masters in Law degree in Human Rights and Civil Liberties and a diploma in Women’s Rights.
She was appointed Supreme Court judge on June 11 2011 but her appointment raised murmurs among some critics who viewed her as an activist given her past performance in parliament when she constantly vouched for gender equality.
But she was to hit headlines when she threatened to sue businessman Jacob Juma (now deceased) for linking her to an alleged bribery to influence the outcome of an election petition by Kabete MP Ferdinand Waititu against then Nairobi governor Evans Kidero.
Justice Ndung’u is so close to the establishment that she and retiring Justice Ojwang went against the grain by upholding the election of Uhuru as president in 2017 petition by the majority judges carried the day.
But some of the judges fear her elevation will send the wrong signals since she is close to the government of the day.
Another name that is cropping up as possible Maraga’s successor is that of Supreme Court judge Isaac Lenaola.
The 53-year-old judge won another cap in his feathers when he was named 2019 Jurist of the Year.
Many legal practitioners describe him as calm, fair and wise. He has no political leaning according to legal brains.
The award was bestowed on Justice Lenaola by the International Commission of Jurists (ICJ Kenya) for consistently, fearlessly and impartially espousing values and ideals that have immensely contributed to the promotion and protection of human rights, the rule of law, justice and democracy in Kenya and the Africa region.
Lenaola, who hails from the sleepy Samburu county, beat all odds to attain outstanding academic credentials and become Kenya’s top jurist.
During the campaigns for repeat presidential election, the president castigated the four judges who nullified his win as crooks, and it is unlikely he would endorse Lenaola for the position.
There are also reports that another group is pushing for former Attorney General Githu Muigai, who resigned under unclear circumstances, owing to his long experience in legal field but has been dismissed as a nonstarter.
From within Supreme Court Justice Smoking Wanjala is being considered a favourite.
However, there are indications he might be ruled out due to regional balancing.
Justice Wanjala was also among the four judges who nullified Uhuru’s win in 2017 presidential race.
Insiders revealed that William Ruto is lobbying for Justice Wanjala to take the seat.
Justice Wanjala was interviewed for the post where he emerged second to Maraga.
Ruto is using for Budalang’i MP Ababu Namwamba, currently the chief administrative secretary, ministry of Foreign Affairs and International Trade, to reach for Justice Wanjala. Both hail from Busia county.
We have those exploring the option of picking Maraga’s successor from the pool of judges at the Court of Appeal.
Currently, Justice William Ouko is the president of the Court of Appeal. Others are Justice Philip Waki, Justice John Walter, Justice Alnashir RM Visram, Lady Justice Roselyn Nambuye, Lady Justice Wanjiru Karanja, Lady Justice Martha Koome and Lady Justice Hannah Okwengu.
But judges Alnashir Visram, Philip Waki and Erastus Githinji were due for retirement last year.
The Court of Appeal is also facing a crisis after Uhuru refused to nominate 11 judges for it, 10 for the Labour court and 20 others for the Land court nominated by JSV arguing some of the nominees had integrity issues.
The development left an egg on the face of Maraga and the JSC interviewing panel that approved the names.
But recently, a three-bench judge faulted Uhuru for failing to appoint the judges recommended by the JSC, terming the move unconstitutional.
The judges, Lydia Achode, Chacha Mwita and James Makau said Uhuru is constitutionally bound by the recommendation of JSC on persons to be appointed as judges.
Uhuru had cited links to Coast drug barons, integrity questions and complex ethnic arithmetic as some of the reasons he refused to appoint the judges. It is also said, a number of the candidates bribed to get the post like one of them from western Kenya.
JSC nominated 11 High Court judges—Francis Tuiyot, Hellen Omondi, Pauline Nyamweya, Weldon Korir, Msagha Mbogholi, Aggrey Muchelule, Jessie Wanjiku Lesiit, Mumbi Ngugi, George Odunga and Joel Ngugi — for appointment to the Court of Appeal on July 22 last year after interviews.
The only non-serving nominee to the appellant court is Kibaya Laibuta.
On regional, tribal and gender balance, the president grappled with the appointments of justices Ngugi and Wanjiru Lesiit, who both hail from Kiambu. Justice Lesiit is married to a Samburu.
The JSC, sources said, settled on Lady Justice Omondi on grounds that the Labour Relations and Employment Court has never been represented in the Appellate Court. But she hails from Nyanza region just like Justices Nyamweya and Odunga, presenting another headache to Uhuru.
Queries were also being raised as to why JSC left out Justice Luka Kimaru, the president of the Civil Division, who is considered to be more senior and experienced.