Former Chief Justice Willy Mutunga won the hearts of many Kenyans with the way he handled his retirement.
PAY ATTENTION: Help us change more lives, join TUKO.co.ke’s Patreon programme
He was legally supposed to exit office when he turned 70 in June 2017, barely two months to the general elections.
But he unselfishly announced in 2015 that he would retire early to give the country enough time to recruit a new CJ to avoid the crisis that could arise if the elections were held without a substantive holder of the office.
True to his word, Mutunga retired on his 69th birthday - on June 16, 2016 - handing over the leadership of the Supreme Court to Justice Mohamed Ibrahim, then the senior-most of the four Judges remaining in the Court, and paving way for the exceptionally smooth recruitment of David Maraga as his successor.
Mutunga simply put Kenya first in making the decision.
While many expected Maraga to borrow a leaf from Mutunga and exit office early, the exact opposite is happening today. He has rather inconsiderately chosen to stay put and remain in office until the very last day.
The out of favour CJ is set to proceed on terminal leave on December 12, 2020, before formally retiring a month later, on January 12. But he has made it clear that he will be fully in charge even during the 30-day leave.
With a provision that the recruitment of a successor cannot start until the sitting Chief Justice exits the office, valid concerns have been raised with regard to the motive behind Maraga’s suspect decision, and its potential perils.
There are fears that the critical office could remain vacant for up to six months as the search for a successor continues, not to mention the possibility of a constitutional crisis if Maraga leaves without handing over power immediately.
Even worse, Deputy Chief Justice Philomena Mwilu, who could legally take over as acting CJ after Maraga’s exit, is facing legal challenges over a petition filed at the Judicial Service Commission (JSC) by the Director of Public Prosecution (DPP) and the Director of Criminal Investigations (DCI) over abuse of office. If the petition is successful, she risks being removed from office.
But despite the delicate setting, Maraga and Mwilu have joined forces with Law Society of Kenya (LSK) leader Nelson Havi in fiercely opposing tentative plans being put in place by the JSC to recruit the next CJ.
The three are not new to controversy. They were at the centre of the annulment of the presidential election results in 2017, a move that left the country tittering on the edge; facing a history constitutional crisis.
Maraga last month cause widespread consternation across the country after he erroneously advised President Uhuru Kenyatta to dissolve parliament over failure to implement the two-thirds gender rule. Havi was among ‘aggrieved’ parties that fanatically instigated the advisory.
What motive could Maraga have up his sleeve this time around as he stubbornly refuses to leave the office and actively derails the recruitment of a successor? Kenyans have every reason to suspect there is something fishy cooking here.
Whatever motive Maraga has, let him not push Kenya into another crisis at a time the country is facing a constitutional moment, and with the 2022 General Elections on the horizon. Matters pertaining to these highly-divisive issues always end up before the Chief Justice for determination.
The office thus requires a substantive office holder, one with full powers to serve as President of the Supreme Court and chairman of the JSC.
There is no harm whatsoever in having a candidate on standby to take over the moment Maraga steps out.