Gicheru exit won’t lead to crisis

Lydia Achode (left) swears in Chief Justice Evan Gicheru during the ceremony to promulgate the new constitution held on 27th August 2010 at Uhuru Park Nairobi. Photo/Joan Pereruan 

By Bearnand Namunane bnamunane@ke.nationmedia.comPosted Monday, February 21 2011 at 21:00

In Summary

• The Judicial Service Commission can appoint an acting chief justice to do the job, says Abdullahi

There will be no vacuum if a Chief Justice is not appointed by Sunday to replace Mr Justice Evan Gicheru.

Presiding judges of the Court of Appeal and the High Court could be asked by the Judicial Service Commission (JSC) to run the courts on interim basis.

Lawyer Ahmednassir Abdullahi, a member of the JSC, said on Monday the commission could also name one of the judges in the Court of Appeal to serve as the CJ.

“The Judicial Service Commission may decide to see whether they can appoint an acting Chief Justice. Alternatively, the presiding judges of the Court of Appeal and that of the High Court could run the courts on interim basis,” said Mr Abdullahi.

He said the Constitution did not provide for the appointment of an acting CJ.

“Unless the Judicial Service decides otherwise, there is no provision in law for appointment of an acting Chief Justice,” he said.

Mr Justice Gicheru’s tenure ends on Sunday.

Lands minister James Orengo said the courts could run for a year without a substantive CJ since the new Constitution provided the safeguards.

“The Judiciary is an institution whose work will not stop (in the absence of a CJ). Every judge with jurisdiction will carry out his or her work and it is so departmentalised that there will be no problem, it is just a matter of practice,” said Mr Orengo.

Mr Abdullahi said the clamour for immediate appointment of a new CJ was driven by political reasons and not the vacuum it will leave.

“Even if we don’t have a CJ for a year, the courts are able to run without any problems under the new Constitution. But it is good to have a new CJ as soon as possible for political reasons,” he said.

MPs return to Parliament on Tuesday afternoon divided on party lines.

PNU law makers have threatened to reverse last week’s ruling by Speaker Kenneth Marende throwing out President Kibaki’s nominees for the positions of Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget.

ODM has called a Parliamentary Group meeting on Tuesday morning to rally its members behind the Speaker’s ruling. At the same time PNU MPswill be meeting at the Kenyatta International Conference Centre.

Mr Marende’s ruling has drawn support from donors, with the US asking the President and Prime Minister to stop their troops from politicking.

“Progress can only be achieved if the President and Prime Minister work together in a collaborative way to implement the Constitution,” said Mr Philip Crowley from the State Department.