Friday, 17th June 2011
By DAVID OHITO
President Kibaki last evening signed the gazette notices appointing Chief Justice Willy Munyoki Mutunga, Deputy Chief Justice Nancy Makokha Barasa and Director of Public Prosecutions Keriako Tobiko.
It followed the appointment of Justice Philip Kiptoo Tunoi, Justice Jackton Boma Ojwang’, Justice Mohamed Khadhar Ibrahim, Njoki Ndung’u Susanna, and Smokin Wanjala as Supreme Court judges earlier in the day.
The new officers, who were appointed following consultations between President Kibaki and Prime Minister Raila Odinga, will all be sworn into office on Monday.
Nominees for positions of Chief Justice, Deputy Chief Justice and Director of Public Prosecutions were, however, kept waiting for their formal appointment by Kibaki until late in the evening.
It was not immediately clear why the trio were not appointed alongside five nominees approved for the Supreme Court earlier in the day.
Two civil society groups asked the High Court to interpret the laws used in nominating Mr Tobiko as the new Director of Public Prosecutions.
They asked the court to temporarily stop gazettement of Tobiko’s appointment until the requirements under the new Constitution are met.
The threat of a court order stalling the process further could have played a hand in the speedy gazetting of the CJ, DCJ, and DPP last evening.
Before the gazettement, questions were raised from various quarters why President Kibaki and Raila delayed the appointment of Mutunga, Barasa and Tobiko.
The Clerk of the National Assembly Patrick Gichohi had told The Standard that Parliament submitted the three names to the two principals early Thursday.
“We submitted the names to the Office of the President, the Ministry of Justice, and the Attorney General, with copies of order papers and the votes of the proceedings and the Hansard,” said Gichohi.
Thursday afternoon, a statement sent from State House signed by Kibaki and Raila said: “Upon recommendation of the Judicial Service Commission and after due consultations and subject to Articles 166(1) (b) and 163(1)(c) of the Constitution, it has been agreed that the following be appointed as judges of the Supreme Court: Justice Philip Kiptoo Tunoi, Justice Jackton Boma Ojwang’, Justice Mohamed Khadhar Ibrahim, Njoki Ndung’u Susanna, and Smokin Wanjala.”
Earlier, Dr Mutunga had issued a brief statement saying: “I cannot forget the many Kenyans who have prayed and supported my nomination for the office of the Chief Justice of the Republic of Kenya.”
He went on, “I express my gratitude to the Judicial Service Commission for embracing the constitutional values of transparency and openness in the process that led to my nomination; to the President and the Prime Minister for nominating me with unanimity; the Constitution Implementation and Oversight Committee for judicious hearing they accorded me in the confirmatory hearing process; and the plenary of the National Assembly for finally approving my appointment to the office of the Chief Justice.”
On Thursday, a section of lawyers expressed satisfaction and reservation on the appointments, but warned the task ahead is enormous and Kenyans should not expect instant results.
Lawyer Justin Muturi said the expectations are too high, with the Judiciary reeling from a background of complaints of corruption, inefficiency and a huge backlog of cases.
“The Chief Justice, his deputy and the Supreme Court judges must ready themselves for the new tasks. They must take cue from the recommendations of the Judiciary Reforms Task Force and implement the reforms and overhaul the Judiciary,” said Muturi, who was a member of the task force.
He said Kenyans must appreciate that appointments do not translate into instant coffee-like results. “Judiciary does not operate in isolation. There must be a strong, credible and effective investigatory and prosecutorial wings for the justice system to be effective.”
Mr Fred Athuok, an advocate of the High Court, lauded the new judges named to the Supreme Court, arguing they brought in a good mix of the best legal minds, experience, and seasoned scholars.
“The Supreme Court will require a quorum of five judges and the team has a diverse and rich Bench bringing constitutional experts and scholars to blend with experienced judges and reformists with impeccable credentials,” Athuok said.
“It is a new-look Judiciary and the first genuine radical surgery that brings in four persons from outside the Bench, but with administrative experience fused with those of judges of repute reached after careful selection,” Athuok added.
Observers Thursday said there were many factors that locked out competent applicants who did not make it to the final list of five.
“Some were knocked off because of their previous assignments and issues raised about them. Others were simply eliminated because they have aligned to political individuals and would not be seen to be independent while presiding over cases,” Athuok explained.
The Central Organisation of Trade Unions (Cotu) also lauded the decision by Parliament to approve the subsequent appointment of Mutunga as Chief Justice, Barasa and Keriako Tobiko as Deputy Chief Justice and Director of Public Prosecutions.
Cotu Secretary General Francis Atwoli appealed to Kenyans to support the officers as the new faces of the Judiciary who bring on board a blend of wealth of experience.
Mr Atwoli said Kenyans looked forward to a reformed judicial system, where the corridors of justice would be free of corruption, adding the onus is now on the appointees to fulfill the will of Kenyans.
Former Deputy Public Prosecutor, Philip Murgor, said: “What is most important is that the nominees already enjoy overwhelming public confidence. This was the primary purpose of the reforms as contemplated in the new Constitution.”
Added Mr Murgor: “The easiest manner of convincing the public about change is to bring in new faces, particularly where there is perceived to have been no performance. Prudence dictates that a minimum number of judges must be retained to ensure continuity of the best aspects of the existing Judiciary.”
He noted: “The challenges facing the CJ, DCJ and the judges of the Supreme Court are not to disappoint the great public expectations.”
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