CJ exit and what it means for 2017 polls

NAIROBI: The Judicial Service Commission (JSC) is empowered to appoint all judicial officers in the country and the existing laws intriguingly create situations and lacunas which are a recipe for uncertainty.

Noting that the Chairman of the JSC is the incumbent Chief Justice, and with the knowledge that he must retire by June 15, 2017 (when he turns 70) it behoves Chief Justice Willy Mutunga to kick-start his own departure and plan his succession in national interest.

But before then, the JSC has another exercise to accomplish which relates to Deputy Chief Justice Kalpana Rawal.

When the DCJ is scheduled to retire appears to be a closely guarded secret. To get her birth date has proved near impossible.

According to my research (and fearing to ask the eminent lady DCJ her age!) she turns 70 on December 15, 2015.

The CJ by law also wears another wig. He is the President of the highest Court in the republic which, under Article 163(3) (a), has exclusive original jurisdiction to hear and determine disputes relating to the presidential elections.

And now comes the equation of the departing DCJ and CJ with the date of the next elections set in stone (unless the Constitution is amended) as August 8, 2017.

So the situation on this magical date is that there will be a new Chief Justice who will be about two months old in office.

There will also be a new President of the Supreme Court and a new Chairman of the JSC and of course by then there will interestingly be a new DCJ.

And now time to add yet another interesting ingredient in the masala-mix of 2017.

All things being equal, and subject to an existing court case, according to my calculations at least three Supreme Court Judges must retire by 2017.

The JSC under the leadership of the incumbent Chief Justice must also attend to the appointment to the vacancies in the Supreme Court.

I shudder to speculate on the state of the entire judiciary in 2017 if the High Court decides that the retirement age of some of the affected judges remains 74 years, as is being contended by some holders of the high offices.

Further, we must not forget that between now and 2017, some of the members of the JSC will retire by law.

The JSC itself may have a few members missing under the law, and it will need some interesting calculation to see who will or will not be a member.

The process of appointing the CJ, DCJ and Supreme Court judges is long and windy. An advertisement calling for applications is published in the Kenya Gazette.

An applicant must then complete a prescribed application form and comply with all requirements, then file the application with the Judicial Service Commission for consideration.

The process is rigorous and involves investigations, reference checking, interviews and finally voting to nominate the most qualified candidates.

The nominated Chief Justice and the Deputy Chief Justice are appointed by the President following the recommendation and approval of the National Assembly.

Kenyans are entitled to know when the JSC (or its Chairman, the CJ) will commence the exercise of finding first a new DCJ, then the CJ, and also the Supreme Court judges.

Is the JSC going to wait until the incumbents reach the retirement age or are they going to embark on the elaborate exercise in the time frame that will not create room for anyone acting?

The 2017 General Election will undoubtedly be followed by election petitions as was witnessed after the last elections.

It will be upon the Chief Justice and the Deputy to ensure all election disputes are expeditiously settled within the time lines set in the Constitution, the Elections Act and the Supreme Court (Presidential Election Petition) Rules.

Cases not involving the presidential elections must be dealt with at the High Court and at the Court of Appeal having appellant jurisdiction.

Come 2017, the judges in the High Court and the Court of Appeal, fortunately with the experience of the 2013 post-election cases, there is no room of any anxiety that the Judiciary will not be able to perform its functions.

It is also a fact that Judiciary staff are going through a vigorous training exercise to assist sitting judges and paralegal staff to deal with the recent influx of election-related cases.

It is of great interest to note that when the next elections come, the Constitution will have been fully implemented.

By then, the transitional provisions will be inapplicable, and the Commission for the Implementation of the Constitution (CIC) and the Transition Authority (TA) obsolete.

Let, therefore, the JSC earnestly promote and facilitate the transformation of a new order in the Judiciary.

And in the process, get ready for the 2017 elections.