Why seat in JSC turned into battle for law society’s soul

Cutthroat campaigns, high voltage court battles and dirty scheming that ensued before Thursday’s Law Society of Kenya elections have betrayed the underlying clamour for control of the Judiciary.

By the time Macharia Njeru was declared the society’s representative at the Judicial Service Commission (JSC) after trouncing his rival Tom Ojienda, every trick in the book had been tried and tested as both sides sought to bring each other down.

It had transformed into a battle for the soul of LSK itself.

As the judges and magistrates employer, JSC has a huge stake on what happens in the courts -- especially the Supreme Court -- hence the clamour by both State and non-state actors to have influence in the commission.

Critical body

The commission is also viewed by some politicians and lawyers as a critical institution in the 2022 elections.

The interests in the commission unfolded when Court of Appeal judge Mohamed Warsame was re-elected by judges but President Uhuru Kenyatta forwarded his name to Parliament for vetting.

This angered JSC and an application was filed at the High Court where interim orders barring MPs from vetting the judge were issued.

JSC termed the vetting as unconstitutional since it was not provided for in either the Constitution of Kenya 2010 or the Judicial Service Act 2011

However, in April last year, the MPs adopted a report that blocked the judge’s appointment and accused the Judiciary of interfering with their work. But even as the legal battle for Warsame to join the commission was going on, the appointment of the president’s nominees --- Prof Olive Mugenda, Patrick Gichohi and former CS Felix Koskei -- stalled for several months.

This created a quorum hitch that made the commission unable to handle appointments and disciplinary cases.

It was only in November when the three, along with Attorney General Kihara Kariuki, were sworn into office. Warsame took his oath in January. While the wars over Justice Warsame appointment were being fought in court, LSK’s own battles for the male representative position in JSC that was to be left vacant by Prof Ojienda on April 6 were brewing.

First, a section of lawyers were pushing to lock out their representative in JSC from appearing before a judge or magistrate, citing intimidation and preferential treatment.

At the same time, Ojienda’s troubles over clearance to vie for a second term started. Battles between Kenya Revenue Authority (KRA) and lawyers played out in court.

Ojienda, who took his campaigns to different parts of the country, was finally allowed to contest.

He was beaten in a hotly contested election that saw Njeru, a former IPOA chairman, garner 2,738 votes against his 2,545.

LSK President Allen Gichuhi said JSC needed fresh blood to serve its mandate. But even with the composition of the commission settled, there are views from some of the LSK members who claim that the representation does not reflect the picture of the nation.

Regional balance

“We have been calling for regional balance in all public offices, but out of the 11 JSC slots, five are from one region,” said Homa Bay Town MP Peter Kaluma.

Kaluma said JSC’s critical role of appointing and disciplining judges and other judicial officers attracts political interests, adding that there is need for commissioners to serve the public.

According to Senior Counsel Pheroze Nowrojee, troubles in the commission started five years ago when people within and outside the commission who introduced politics and ambitions in the institution.

“Some politicians and ambitious lawyers started controversies in JSC when they realised it is able to control who is to be appointed as the Chief Justice, deputy CJ, Supreme Court judge and other important appointments within the Judiciary,” he said.

With CJ David Maraga expected to retire in 2021, the fight for LSK’s representative at the commission was bound to get ugly. Two other Supreme Court judges are to retire ahead of the 2022 elections.