The retirement of outgoing Chief Justice David Maraga has triggered a debate about his replacement with the process having gained momentum months before Maraga's last day in office, December 11.
The Justice and Legal Affairs Committee had explained in July that it was important to start recruiting a new officeholder so that the position is not vacant for too long.
The plan seems to have been shelved since the Judicial Service Commission is yet to announce a vacancy in the office and welcome applications.
However, names of senior legal minds have been floated as some of the top contenders to replace Maraga.
They include former attorney-general Githu Muigai, Supreme Court judges Njoki Ndung'u, Isaac Lenaola, Mohammed Ibrahim, Smokin Wanjala, and Deputy Chief Justice Philomena Mwilu.
Having been appointed as the acting CJ, Mwilu is a strong contender given her role as Maraga’s deputy.
She knows the ropes and roles required of the office. She has had a long career in the Judiciary which spans over 32 years. However, a cloud hangs over her head due to corruption allegations levelled against her by the Directorate of Criminal Investigations (DCI).
Justice Njoki Ndungu, the only other woman in the Supreme Court would provide the country with the first female chief justice if she sails through.
Ndungu, and all the other Supreme Court judges, have the necessary qualifications of being a Chief Justice.
She was a member of the Committee of Experts who drafted the 2010 Kenyan Constitution and received international and national recognition for her work.
She was awarded the 2006 UN Person of the Year in Kenya and the 2006 International Commission of Jurists - Jurist of the Year Award and the 2006 Presidential Commendation of the Elder of Burning Spear (EBS) in the same year. Justice Ndung'u was recently appointed Chief of Burning Spear (CBS).
Justice Smokin Wanjala is yet another insider who is seen as a possible heir. He holds a master's degree from Columbia University, New York, and a doctorate of law from the University of Ghent, Belgium.
Justice Isaac Lenaola, who is chair of the Strathmore Center for Advanced Research of International Criminal Justice Advisory Board, is also expected to be in the line to succeed Maraga.
Kelvin Njihia, a lawyer, stated that should the next chief justice come from the Supreme Court bench, the Judiciary will have to nominate another judge to fill the required number.
While he recommended that Justice Ndung’u was the best candidate on the bench, he also noted that the office of the CJ needed a fresh face, an outsider.
Prof Muigai, the 60-year-old graduate of the University of Nairobi and Columbia University School of law served as AG from August 2011 to February 13, 2018, when he resigned. He also served in the defunct Constitution of Kenya Review Commission. After resigning as AG, Muigai retreated to a quiet life as a lecturer.
Prominent lawyer Ahmednasir Abdullahi also fits the bill in terms of experience. He, however, is on record saying that he would not like to become a judge, while the office of the CJ requires one to be the president of the Supreme Court.
While Njihia stated that Ahmednasir’s political opinions may show bias, Professor Tom Ojienda stated that “outsiders like Ahmednasir and Prof Makau Mutua are suitable. Ahmednassir is fearless and intelligent”.
