Is this man Kenya’s next Chief Justice?

According to sources, the name of High Court Judge Paul Kihara Kariuki (above) has been discussed during two meetings of the higher echelons of PNU in Kiambu and Nairobi in as many weeks as a possible successor to Mr Justice Gicheru. Photo/FILE

By MUGUMO MUNENE, mmunene@ke.nationmedia.com
Posted Saturday, October 16 2010 at 22:36

The search for a new chief justice has intensified as coalition partners ODM and PNU grapple over whom to chose to head the Judiciary when Justice Johnson Evan Gicheru leaves office.

Lawyers familiar with the search for the CJ say the coalition appears to have reached an agreement that PNU would nominate a candidate while ODM fills the Attorney-General’s position.

In the political deal – which some have warned may compromise the future integrity of the candidate who clinches the job – ODM will also nominate a candidate for the office of deputy CJ while PNU will name a nominee to the powerful office of the Director of Public Prosecution.

According to some legal opinions, the country has 10 days to appoint Mr Justice Gicheru’s replacement.

High echelons

According to sources, the name of High Court Judge Paul Kihara Kariuki has been discussed during two meetings of the higher echelons of PNU in Kiambu and Nairobi in as many weeks as a possible successor to Mr Justice Gicheru.

The sources told the Sunday Nation that Justice Riaga Omollo, the senior-most judge after the CJ, has also been considered for the position, as have been his Court of Appeal colleagues Philip Waki, Philip Tunoi, Samuel Bosire, Onyango Otieno, Erastus Githinji, Alnashir Visram and Joseph Nyamu.

But the search has not been confined to the Judiciary. Law professor Githu Muigai, former International Commission of Jurists (Kenya chapter) chairman Kathurima M’Inoti and President Kibaki’s adviser on the Constitution Prof Kivutha Kibwana have also been touted as possible nominees.

Well-grounded

Also mentioned are former Committee of Experts chairman Nzamba Kitonga and senior counsel Pheroze Nowrojee, Fred Ojiambo and George Oraro, who was described in the Nairobi Law Monthly as “very experienced and well-grounded”.

Mr Justice Lee Muthoga of the International Criminal Tribunal for Rwanda, has also been considered while Justice minister Mutula Kilonzo has also been mentioned in high political circles as a candidate for the demanding job of reforming an institution that has long been viewed as a bastion of corruption and incompetence.

“The CJ’s appointment is the single most important job. It’s the fountain of justice. That is where we all ventilate our disputes. If you have a CJ with a cloud hanging over his head, then you have a problem. The new Constitution does not say where the President shall get the names.

“We intend to become a part of the process by proposing names, which list will be drawn up by the LSK council, for consideration by the President and the PM,” said LSK secretary Apollo Mboya. According to the lawyers, the two principals and Parliament should consider appointing a CJ from outside the current crop of judges to send a clear message of reform.

“It should be a new beginning. You must necessarily bring people from outside so that it’s not business as usual. Sometimes it’s perceptions that matter. Judges have complained that lawyers are interested in these jobs. Of course lawyers are,” said Mr Mboya.

Mr Mboya said the LSK would submit a list of about 10 of their number who they feel should replace Mr Justice Gicheru. The new Constitution requires him to leave office six months after the promulgation.

President Kibaki and the Prime Minister Raila Odinga will pick a nominee and forward the name to Parliament for vetting and approval. But should the Judicial Service Bill be passed into law before a new CJ is picked, the head hunting job will fall on the new Judicial Service Commission.

Their lieutenants

An aide familiar with the common diary of the two principals said they were yet to discuss the appointment, although their lieutenants have been active in the search. Some lawyers, however, say the outgoing CJ could hold brief as the chairman of the new Judicial Service Commission, which should be in place by October 27, as the search for his successor continues.

Former LSK chairperson Ahmednasir Abdullahi and publisher of the revived Nairobi Law Monthly says the makers of the new Constitution did not intend that any of the current judges should ascend to the high office.

Mr Abdullahi argues that because the new Constitution provides Mr Justice Gicheru should either retire as CJ or subject himself to vetting as a Court of Appeal judge, then he should not sit on the new Judicial Service Commission.

“It is inconceivable under the present constitutional dispensation for a judge waiting to be vetted to be considered for the position of chief justice.

“To make matters worse, some prominent judges might not survive the vetting if the evidence being gathered by lawyers and some members of the civil society is anything to go by,” said Mr Abdullahi in an article published in the current issue of the magazine.

Same position

Mr Mboya of the LSK takes the same position. “We will participate in this process because we lawyers know ourselves. There is a box of complaints against some members of the Judiciary and we shall be there during vetting to ask them whether they have really lived up to the oath of office and whether they have discharged their judicial duty without fear or favour, affection or ill will,” he said.

Senior Counsel Paul Muite, however, says the country should start with describing the CJ’s job in detail before starting the search for the office holder.

“We should not start with the personality – whether they teach at the Faculty of Law or have been on the Bench. We are coming from a situation where the public has lost confidence in the Judiciary and viewed it as subordinate to the Executive. It’s because the chief justices have been hand-picked by the President and the courts have not had financial autonomy,” said Mr Muite, also a former LSK chairman.

“The person should have an exceptionally good legal intellect. Purely on that basis, the person must command respect with other judges and with lawyers. We know each other just like carpenters know which of them makes the best furniture. We should also have someone of unquestionable moral standing,” Mr Muite told the Sunday Nation.

“It should be a man or woman of exceptional courage so that the perception that the Judiciary is subordinate to the Executive is eliminated. I should be someone who will serve for public interests and make decisions purely on the evidence, the law and public interest. These should be in the job description.”

He also cautioned ODM and PNU against the temptation to horse-trade as far as the CJ’s position is concerned, saying this would compromise the integrity of such a nominee.

New offices

Last month, the Kenya Judges and Magistrates Association issued an unsigned statement protesting what they viewed as a move to block them from occupying the new judicial offices created by the Constitution.

“We are disturbed that a section of the Kenyan society, notably Law Society of Kenya, the International Commission of Jurists (Kenya Chapter) and the Federation of Women Lawyers (Kenya Chapter) seek to exclude the membership of KMJA from applying and seeking the high office of the Chief Justice of the Republic of Kenya,” their statement said.

Like all Kenyans, they argued, they enjoyed the rights and freedoms that are provided for in the new Constitution, including seeking gainful employment. “Any attempts to exclude deserving members from seeking and applying for any position within the Judiciary will be a negation of basic fundamentals in our Bill of Rights... including that of the Chief Justice of the Republic of Kenya,” they said.

A retired judge who spoke to the Sunday Nation on condition of anonymity said the new CJ should come from the Bench and be able to sit and decide on weighty cases. “By sitting on the Bench, that is how the CJ tests the legal talent that he or she has. In choosing the CJ, we should not play the ethnic card. We should look at the integrity and the potential to lead from the front,” said the retired judge.

“We must avoid academicians. They approach judgments as though they were writing theses in a PhD.” Mr Justice Kihara started his legal career in private practice and rose to become a partner in the firm of Hamilton Harrison & Mathews before moving to Ndung’u Njoroge and Kwach and eventually crossing to the Bench.

Young lawyers joining Hamilton Harrison & Mathews are directed to read Mr Justice Kihara’s files while he worked there to hone their abilities in drafting legal letters. “He’s a fine legal mind,” said one of the lawyers who joined the firm after the judge had left.

“He’s also very friendly, even to junior lawyers.” But other lawyers say he would run into a headwind if he were to clinch the highly competitive position since he would overtake many judges who are more experienced and older in the practice.

“There has to be a lot of justification to be done to those who will be passed by. It would be either due to his hard work, integrity or something. The Judiciary has a hierarchy just like the military or the police. If you promote a corporal from Kakamega and make him the Commissioner of Police, there has to be justification,” said one of the people eyeing the job.