Reports Leo Odera Omolo

It is only Parliament and the courts that now stand between law scholar and icon of human rights activism Willy Mutunga and office of Chief Justice.
The two principals in the ruling coalition government of PNU and ODM have endorsed the appointment in defiance of vehement opposition from various quarters such Christian Council of Kenya{CCK} even some cabinet ministers who included the suspend Higher Education Miister William Ruto

This is because President Kibaki and Prime Minister Raila Odinga, whose falling out over initial nominations to four key constitutional offices including that of CJ, forced fresh hiring process, yesterday gave him their stamp of approval.
Two other nominees are bound to benefit from the softening of the ground and possible lowering of political temperatures ahead of Parliament’s debate on the pending appointments by the two leaders.

They are Nancy Barasa, the nominee for Deputy Chief Justice, and Keriako Tobiko, who has been recommended for revamped office of Director of Public Prosecutions. The President and the PM made the announcement against the backdrop of revelation in Government they have also agreed on a ministerial reshuffle and reorganisation of key State departments, and that the new changes would be unveiled in the next few days.

It is expected in the reorganisation of Government, the two principals will make known who they have agreed to succeed Attorney General Amos Wako who leaves office in three months.

Political Goodwill

Judicial Service Commission recommended Dr Mutunga and Ms Barasa after the televised interviews last week. Appellate Judge Alnashir Visram – whom President Kibaki had earlier proposed as CJ – was also interviewed. Visram was, however, among the nine serving judges who lost out in the race to Mutunga, the only one interviewed from outside the Bench.

Mr Tobiko was among three nominees for DPP, whose names were forwarded to Kibaki and Raila by a panel chaired by Cotu Secretary General Francis Atwoli. The other two were former Goldenberg Judicial Commission of Inquiry’s assisting counsel Dorcas Oduor, and lawyer Patrick Kiage.

By endorsing the three nominees, and exhibiting consensus after two rounds of meetings, the President and the PM gave the nomination that has been vilified by some politicians the requisite political goodwill needed to push it through Parliament. MPs, however, do not have to vote along the line given by the coalition leaders. This means the three are not yet assured of their positions — the first under the Constitution promulgated last August.

However, apart from Parliament there is still the ruling awaited from According to a dispatch from the Presidential Press Service, Kibaki and Raila had agreed to approve the names after they consulted yesterday. “On recommendation of the Judicial Service Commission and after consultations with Prime Minister, President Kibaki has today nominated for approval by the National Assembly Dr Willy Mutunga for the post of Chief Justice and Nancy Barasa for post of Deputy Chief Justice,” PPS reported.

It went on: “In addition and following the recommendation of the interviewing panel President Kibaki after consultations with the Prime Minister has nominated for approval by National Assembly Keriako Tobiko for the post of Director of Public Prosecutions.” Should the House approve the names, they would enter history books as the first occupants of the positions following the promulgation of new Constitution.

Mutunga will also become the head of the Judiciary and will chair the Judicial Service Commission as well as serve as the President of the yet-to-be established Supreme Court. Sources told The Standard the two principals met Tuesday morning at the President’s Harambee House offices and quickly agreed on the names. They first met on Monday.

Ambush Applicants

The source said the principals only spent more time on the appointment of Tobiko since the panel that interviewed them had forwarded three names and therefore there was need for consensus.

The principals were also supplied with the scorecard for the three, which had Tobiko leading followed by Oduor and then Kiage.

“There was no much ado between the two principals and they agreed on Mutunga and Barasa since there were no other names. For Tobiko they picked him because he led in the interviews among other factors,” sources privy to the deliberations told The Standard.

Justice and Constitutional Affairs Minister Mutula Kilonzo commended JSC for nominating Mutunga and Barasa, and the principals for endorsing the nominees.

“I am very happy and proud of my country Kenya because in a period of eight months since the Constitution was promulgated we have now produced a Chief Justice and Deputy Chief Justice in an open and transparent manner,” he added.

However, Mutula hit out at the Atwoli panel that came up with three names for DPP: “Whereas the process to pick a new Chief Justice and Deputy CJ was transparent and in the public domain, the other one was shrouded in secrecy and there was no public participation as required by the Constitution.” Mutula said he has a lot of respect for those nominated for the DPP position but was opposed to the process that picked them, as the public cannot judge who was best suited for the position. Mutula described the process by Atwoli team as “unacceptable, substandard and archaic” in light of the new constitutional dispensation.

On CJ nomination Mutula said whereas the process could not be described as perfect, there were challenges that the commission faced and there was need for JSC to set certain standards. He argued it was unfair to ambush applicants with allegations while no opportunity was given to them to confront those claims

Ends