The election of Evelyne Olwande to represent magistrates in the Judicial Service Commission has scuttled a plan by some insiders to micromanage the succession of Chief Justice David Maraga.
Olwande beat Stella Atambo, Florence Macharia, Dolphina Alego and Teresia Nyangena to represent the Kenya Magistrates and Judges Association in the JSC.
Sources within the Judiciary said vested interests were at play during the elections to replace chief magistrate Emily Ominde whose term has expired.
The control of JSC is crucial to naming Maraga's successor and other judges hence need to have “friendly members there”, a source said.
JSC is the statutory body that is mandated to recruit a CJ and all judicial officials.
Ethnic arithmetic and lobbying from within the Judiciary helped Olwande to win the crucial position in the elections held on December 5, 2020.
Judiciary insiders hoped for a candidate who would help hold their independence given the perceived onslaught from the government, officials aware of the lobbying said.
Chief magistrate Olwande joins commissioners Philomena Mwilu, Mohamed Warsame, Olive Mugenda, Felix Koskei, Patrick Gichohi, Attorney General Paul Kihara, Macharia Njeru, Mercy Deche, David Majanja and Anne Amadi who is the Chief Registrar of the Judiciary and the secretary of the commission.
Maraga went on terminal leave from December 12, and will return on January 11 next year to hand over his deputy Mwilu who will take charge temporarily.
“... pursuant to the provisions of Articles 161(2)(b) and 163(1)(b)(1) of the constitution of Kenya, 2010 as well as section 5 of the Judicial Service Act and all other enabling provisions of law I hereby authorize you, Philomena Mbete Mwilu, the Deputy Chief Justice of the Republic of Kenya, to act as Chief Justice ... of the and perform all duties and functions of the Chief Justice from 12 December 2020 until my retirement on 12th January 2021,” Maraga said in a December 11 letter.
This is the situation that propelled the interested parties to push for their candidates to the commission.
DCJ Mwilu will act as the CJ for a period no more than six months or until a new CJ is appointed.
Officials aware of the lobbying have mentioned Supreme Court justices Mwilu, Smokin Wanjala and Njoki Ndung’u as possible candidates.
Others being mentioned include Court of Appeal president Justice William Ouko, judges Martha Koome and Wanjiru Karanja.
Amadi has also been mentioned as among those interested in either the DCJ position or CJ depending on intrigues that will play out.
Law professor Makau Mutua is also being lobbied to apply for the CJ position.
Mutua, the first African to be dean of a law faculty in the US is a formidable legal scholar and from 2008 to 2014 headed the State University of New York School of Law in Buffalo.
JSC is expected to put a public advertisement in January seeking to recruit the CJ.
If Justice Mwilu succeeds as the CJ it means there will be a vacancy in the position of the DCJ and the commission has to recruit a man to fill it.
As the Judiciary's second in command, Mwilu is the frontrunner in the race.
A new judge to the SCOK to fill the vacancy left by retired judge Jackton Ojwang will also be sought.
SCOK is key in determining presidential petitions. In the 2017 elections, the court nullified the election of President Kenyatta prompting another election.
The main functions of the JSC include recommending individuals to the President for appointment as judges and review and recommend the conditions of service of judges and judicial officers, other than their remuneration and the staff of the Judiciary
JSC also appoints, receives complaints against, investigates and removes from office or otherwise, disciplines registrars, magistrates, other judicial officers and other staff of the Judiciary.
It further prepares and implement programmes for the continuing education and training of judges and judicial officers and advise the national government on improving the efficiency of the administration of justice.
Last week, as part of what is seen as efforts to derail their mandates, activist Okiya Omtatah moved to the court and asked it to bar the JSC from appointing Mwilu to act in the office unless they clear her of all corruption allegations.