PNU wants Gicheru to remain CJ after Feb 27

Monday, 21 February 2011 00:02 BY FRANCIS MUREITHI

TWIST:Mutula kilonzo, Evan Gicheru with PLO Lumumba after he was sworn in as KACC Director.

PNU is pushing for Justice Evan Gicheru to continue serving until the standoff between the two principals on  his successor is settled. In a move that is likely  to add fireworks in an already heated floor, PNU MPs allied to President Kibaki have also asked Gicheru not to quit the Judiciary but  serve as Court of Appeal judge. They have argued that by moving to the Court of Appeal, Gicheru will automatically become the senior most appellate judge hence entitled to serve as the acting CJ until a new head of Judiciary is appointed. Appellate judge Riaga Omolo is currently the senior most judge after Gicheru.
Sixth schedule of the transitional clauses article 24 (1)  says the Chief Justice in office immediately before the effective date shall within six months after the effective date, vacate office and may choose either retire from the judiciary, or be subjected to the process of vetting under section 23, to continue to serve on the Court of Appeal. “We would be expecting that the Chief Justice who will be leaving office on 27 of February serve as the acting CJ. The practice within the Judiciary is that the senior most judge acts as the chief justice in the absence of a substantive appointment,” said Ndaragwa MP Jeremiah Kioni. “If he chooses to become a judge of Court of Appeal, then it follows that he is still the senior most judge in the Judiciary. We would be expecting him to be acting as the CJ until an appointment is done,” Kioni said.
Kibaki on Friday rejected a ruling by Speaker Kenneth Marende that the nomination of Justice Alnashir Visram as the new CJ be conducted afresh as per the National Accord.
Kibaki said the government will wait for the ruling of the constitutional court. Gicheru has appointed a three-judge bench to hear the case starting today.
The bench comprises of Lady Justice Kalpama Rawal, Justice George Dulu and Justice Luka Kimaru. Chances are high that the country will not meet the February 27 deadline of appointing a new CJ as there are less than six days left,  opening the prospects of an acting CJ.
However, lawyer Ahmednasir Abdullahi, who is also a member of the recently constituted Judicial Service Commission, yesterday said the new constitution has no position for an acting CJ. “The office will be vacant. There is no provision in the constitution for an acting chief justice or for someone to assume office by default or by any other mechanism other than an appointment under the constitution,” said Ahmednasir. “So whether you are senior or not you will be senior where you are in that court but you will not become the acting Chief Justice,” he added.
 The former Law Society of Kenya chairman said even the JSC does not have power to appoint an acting CJ.