Four new members of the Judicial Service Commission (JSC) took office last week, after the Court of Appeal discharged a long-standing injunction preventing their swearing in. Those on whom Chief Justice David Maraga administered the oath include Attorney General Paul Kihara Kariuki, who is a member of the JSC by virtue of his office, and Patrick Gichohi, representing the Public Service Commission. The other two were former Kenyatta University Vice Chancellor Oliver Mugenda and former Cabinet Secretary Felix Kosgey, both appointed as representatives of the public interest.

There is still the unresolved question of Justice Mohamed Warsame, re-elected early in the year to represent the Court of Appeal, after the expiry of his first mandate, but unable to re-join after he resisted a requirement for vetting by the National Assembly, a pre-condition to which his first mandate was not subjected, nor that of any other elected member of the JSC.

The High Court had issued an injunction against the swearing in of Prof Mugenda, Gichohi and Kosgey, and in solidarity with the three, the Attorney General refused to take his position in the JSC. It is after the discharge of that injunction last week that the four assumed office. While the AG found it necessary to express solidarity with the three, he has shown no interest in the fate of Warsame.

The Court of Appeal will eventually decide whether Warsame can take his place without vetting by the National Assembly, after the matter was submitted for its decision on appeal. In July, High Court judge Chacha Mwita ruled that Warsame did not need to be vetted, in a case brought by the Law Society of Kenya. It is that judgement that is the subject of the pending appeal.

Same hurdle

How the question of Justice Warsame is resolved will affect the situation of two other elected members whose terms are ending soon, with elections to fill the resulting vacancies now looming. The tenures of Law Society representative Tom Ojienda and the representative of the High Court Justice Aggrey Muchelule will both end early next year, with the elections to replace them under preparation. Whoever is elected to replace the two could face the same hurdle as Warsame.

The entry of the new members now affects the outlook of the JSC, whose regional representativeness is concentrated in one part of the country. As now constituted, four of the 11 members are from one region of the country, leading to the perception that the political leadership is trying to strengthen its hold on the Judiciary as part of the strategy for a post-Kenyatta presidency. The apparent determination to block Warsame from joining the JSC is largely perceived in the same light.

In the past, the JSC has suffered from significant political meddling. After the retirement of Christine Mango in 2013, the resulting vacancy remained unfilled for more than a year.

At the beginning of 2014, another member of the JSC, Rev Samuel Kobia, suddenly resigned, thus creating a second vacancy. Kobia had been appointed for five years and was not due for retirement until August, 2016. President Kenyatta then appointed Winnie Guchu and Kipngetich Bett to fill the two vacancies. Guchu had been the campaign manager of Kenyatta’s political party in 2013.

It appeared that the appointment of Guchu and Bett was made with a clear approach of maintaining a balance between the President and his deputy William Ruto in representation on the JSC. Following last week’s swearing in, Bett has now been replaced by Kosgey. Bett still had three years before the end of his term. There has been no public explanation as to how he left office, long before the end of his term. According to his colleagues at the JSC, Bett was a serious and useful member of the commission. While the constitutional independence of the JSC is an important principle in guaranteeing judicial independence, it is clear that the establishment has never accepted that position and has been trifling with the JSC, in a manner calculated to undermine the Judiciary.

Besides an impulse to maximise control over the Judiciary as part of managing the impending political transition, the establishment remains unhappy with the Judiciary after the Supreme Court annulled the presidential election results last year. At the time, the political opposition was available as a bulwark against attacks on the Judiciary.

Following the handshake between Kenyatta and Opposition leader Raila Odinga, this has changed. While the two are friends, Kenyatta has not forgiven the Judiciary. The level of political meddling with the Judiciary is immense and is bogging down the operations of this institution. Not even during the country’s one-party that the country has experienced this level of interference with the judiciary.

With new members of the JSC now in office, the JSC will overcome the paralysis into which it was falling. However, it will now also move closer to the complete takeover by the government.

- The writer is Executive Director at KHRC. gkegoro@gmail.com