A decision by Prof Olive Mugenda to chair the Judicial Service Commission panel interviewing candidates for the post of Chief Justice posses a risk of the outcome being challenged.
In a reply to an appeal filed by Attorney General seeking to lift orders stopping the interviews, Memba Ocharo said the commission as currently constituted risks giving a challengeable outcome for the nominee of the Chief Justice.
His lawyer Danstan Omari further said Patrick Gichohi, who purportedly represents the Public Service Commission (PSC) is a stranger in the commission following his retirement from the public service.
He said Gichohi cannot continue representing PSC after retiring.
Ocharo said there is need for the recruitment process to be lawful, constitutional and acceptable to the people in order to give the court and the chief justice appointed legitimately, just like it happened during the recruitment of retired chief Justice’s David Maraga and Willy Mutunga.
“Such acceptable appointment of chief justice will avert the court’s rejection by the people as it was in 2007 when opposition Raila Omollo Odinga discredited the court following the contented 2007 Presidential Elections,” he said.
Justice Anthony Mrima, Wilfrida Okwany and Reuben Nyakundi stopped the interviews for the position of the Supreme Court judge and allowed the Commission to continue with the interview of Chief Justice but stopped JSC from forwarding the name of the successful candidate to the President for appointment.
“The Judicial Service Commission is hereby restrained from conducting the interviews for the judge of the Supreme Court pending the hearing and determination of the consolidated Petition,” ruled the bench.
Ocharo says that he believes the three judge bench acted fairly and were careful while issuing the orders.
Ocharo says the appeal by the commission is misguided, premature and an attempt to drag the Court to adjudicate on the constitutional issues yet the commission knows very well that the appellate court cannot entertain the arguments of the substantive petition while it is still pending for hearing and determination at the High Court.
According to Ocharo, the court would be invading the jurisdiction of the constitutional court and possibly rob it off its discretional powers should it accede to the applicant’s invitation.
He further argue that for the court to have allowed the further considerations of the person suitable for the position of the Chief Justice or the judge for the Supreme Court would ultimately have made picayune and otiose the petitions currently before the Constitutional court.
Through lawyer Omari, Ocharo further, say that if conservatory orders were not issued, the situation would have been complicated as it would have ultimately provoked the removal of the CJ or the Judge of the Supreme Court for having been appointed through an unconstitutional process further leading to possible litigation against the applicant for the nominee’s loss of employment.
“I have further considered the grounds of the applicant’s memorandum of appeal and I am persuaded that the appeal would not be rendered nugatory if the application is not allowed since the substantive appeal is yet to be heard and determined and further because the statutory limits are two months away, which in all fairness is still sufficient time to do as the law requires, ” Ocharo says.
The interviews for the candidates for the office of the Chief Justice were strangely being Chaired by Prof .Olive Mugenda who is only but a commissioner to the commission yet the Judiciary was left under the care of an able acting Chief Justice Philomena Mwilu who should obviously be the chair of the interviews.
“I found it disconcerting and constitutionally untenable since it has not been apparently clear to Kenyans why the interviews were being chaired by Commissioner Prof.Olive Mugenda in open defiance and insubordination of the constitutional and statutory dictates that demand that the applicant’s affairs should either be Chaired by the Chief Justice or his Deputy in his absence, ” says Ocharo.
He adds that it was increasingly becoming clear that the commission failed terribly to vet the candidates before shortlisting them for interview as the candidates had admitted not have submitted their wealth declaration forms and of their spouses in breach of Chapter Six of the Constitution.
He adds that other than the commission`s application being alarmist and offensive to the doctrine of ripeness, it is oxymoronic, contradictory and illogical as the applicant invokes statutory timeliness in order to persuade the court to allow it yet it has been acting in contravention with the law by conducting its interviews in contravention with the Constitution and the law by in subordinating the authority of the Acting Chief Justice Philomena Mwilu.
He also says the commission cannot reasonably seek legal protection from the law, as it has been contravening, disregarding and thus encourage the Court to decline the invitation of the commission to invade the judicial discretion of the High Court as there has not been proof that the said discretion was exercised improperly or in disregard of any constitutional dictate.
