October 22nd 2017

Top Stories / National

Justice Maraga's nomination for CJ post reveals JSC's contempt for Supreme Court

Attorney General Githu Muigai, one of the panelists, put him to the test, seeking to know how he would pass judgment in suits where two or several laws were at conflict.

By Phillip MuleeThursday, 22 Sep 2016 17:09 EAT

The Supreme Court Building (Photo: Oscar Ndunda/Kenya Free Press)

The nomination of Court of Appeal judge David Maraga as the new Chief Justice of Kenya is a surprise sweet news for the judge and the second highest court, which in recent years emerged as a source of more trusted jurispridence than the Supreme Court.

Justices Smokin Wanjala and Jackton Boma Ojwang, both of the Supreme Court, seemingly did not impress the Judicial Service Commission despite the fact that both are law professors of several years standing and are known to be close to Jubilee leaders.

By contrast, Appelate judges shone during the interviews. Justice Alnashir Visram who was once nominated for the position by former President Mwai Kibaki, before being rejected by Parliament, was also seen as a frontrunner for the position this time around. So were Justices Mbogholi Msagha and Roseline N. Nambuye.

With the Judicial Service Commission settling on Maraga, the 65-year-old judge of 13 years is expected to easily sail through Parliamentary approval and take over the reigns of the Judiciary from Dr. Willy Mutunga who retired in June 2016.

The Kisumu-based judge was the third to be interviewed for the position, being one of 11 serving judges shortlisted by the JSC. The JSC announced today that the CJ once cleared will assume office with immediate effect.

Others who faced the panel of interviewers included New York-based law scholar Prof. Makau Mutua, former chairman of the defunct Kenya Anti-Corruption Commission (KACC) Aaron Ringera and former chairman of Committee of Experts that wrote Kenya's new constitutional Philip Nzamba Kitonga. A number of other candidates considered long shots were also interviewed.

During the interviews, Maraga found himself at pains to demonstrate his expertise in applying the law in conflicting suits. Attorney General Githu Muigai, who is one of the most influential JSC members, put him to the test, seeking to know how he would pass judgment in suits where two or several laws were at conflict.

He used a case study of a surrogate mother who decided not to give a child to its separated biological parents, who were both seeking custody. Maraga admitted that the question was tricky but answered: "In this scenario, the child's interest is paramount."

Not many analysts had given Justice Maraga great odds to emerge as the JSC candidate. Jubilee's domination of the JSC meant that the whole nomination process was fraught with pessimism, which boiled over when the JSC failed even to shortlist Prof. Mutua, one of Kenya's best legal brains.

Still, the failure by Supreme Court judges to make the cut speaks volumes about the scant respect they command in official circles.

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