For the last eight months, the seven judges of the Supreme Court of Kenya have been unable to agree upon or elect their representative to the Judicial Service Commission of Kenya (JSC). Justice Dr Smokin Wanjala, who was the court’s representative for the last five years, is seeking a second term. So far no one has formally declared an interest in running against him – even as it is revealed that virtually everyone, save for the Chief Justice wants to run – yet no elections have been held for the last eight months.
Multiple sources who spoke to the Nairobi Law Monthly on condition of anonymity revealed that every time the chief justice calls for an election, the seven-member meeting degenerates into a shouting match and ends abruptly and unceremoniously. The last meeting called by Chief Justice David Maraga in February ended in total disarray. And the CJ’s insistence that the judges vote by consensus rather than by secret ballot hasn’t helped matter either.
According to well-placed source who spoke to the Nairobi Law Monthly, the disagreement and hostility between the judges has created a very poisonous atmosphere in the court and threatens its very operationability.
There are two factions, with a number of members sitting on the fence. Justices Smokin and Mohamed Ibrahim as seen to be very close in terms of ideas and thinking. Justices Njoki and Ojwang sit at the opposite of the spectrum and are said to be strongly opposed to the candidature of Justice Wanjala. The Chief Justice, his deputy and Justice Isaac Lenaola, all new members of the court, despite their respective friendships to the two groups, have taken a wait-and-see attitude in the contest.
The elections have brought to the fore the deep-seated rivalry and outright hostility that exists between members of the court. Justice Wanjala’s candidature is a total no-go for Justices Njoki and Ojwang. The two judges are of the view that Wanjala cannot be their representative in the commission as he hasn’t been very vocal in defending members of the court before the JSC.
It must be remembered that the two judges have been taken before the JSC for various complaints, and Justice Njoki has a pending case before the JSC. Justice Njoki would have loved to vie for the position but the pending case she has with JSC makes her candidature totally unfeasible.
Last month, those opposed to Justice Wanjala’s candidature suggested the deputy chief justice Philomena Mwilu as a compromise candidate. She, however, declined on the basis that it not tenable for the chief justice and the deputy chief justice to be members of the commission. Justice Wanjala so far has the support of Justices Ibrahim and DCJ Mwilu, even though sources intimate that Mwilu doesn’t really mind being nominated for the seat; in fact, she would be elated.
Justice Lenaola, on the other hand, will sit out this contest probably out of deference to Justice Wanjala, even though he too probably won’t refuse if members anoint him as a compromise candidate.
As we went to press, the Chief justice had not fixed a date for the next meeting or election. But several sources the Nairobi Law Monthly spoke to intimate that the only way to break the impasse is for the chief justice to conduct an election as provided for in law. Such a ballot contest would give Justice Wanjala probably 4 to 5 votes, as those opposed to him may not even have a candidate to challenge him.
Nevertheless, the current paralysis, according to our sources, gives the minority dissenting members of the court veto powers in an election they are certain to lose.