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Behind the dispute between the Judicial Service
Commission and the National Assembly, which has
led to a recommendation for the removal of the six
members of the JSC, is intense jostling within the
Jubilee coalition for the control of the judicial body in
order to control the anticipated transition within the
Supreme Court, reliable sources indicate.
In the next four or five years, there will be three
vacancies in the seven-judge court, which has
politically important roles, including making
decisions on the validity of the election of the
President.
Chief Justice Willy Mutunga, Deputy Chief Justice
Kalpana Rawal, as well as Justice Philip Tunoi will
retire within this period.
The President appoints the Chief Justice and the
Deputy Chief Justice in accordance with the
recommendations of the JSC and subject to the
approval of the National Assembly. The President
appoints all other judges on the recommendation of
the JSC and without the involvement of the National
Assembly.
In the absence of parliamentary involvement in the
appointment of the vast majority of the judges, the
JSC is viewed as key to the control of the composition
of the Judiciary.
Sources indicate that some of the members of the
JSC are viewed as having become too powerful to
carry the agenda of Jubilee in the JSC.
The removal of the six members is, therefore, an
opportunity to reconstitute a large segment of the
JSC in preparation for the Mutunga succession.
A number of the members of the JSC whose removal
has been recommended are nearing the end of their
terms. These include Ahmednasir Abdullahi, elected
by the Law Society of Kenya. The Society has already
announced his vacancy and invited candidates to
elections that will result in the filling of the slot.
The other whose term has ended is Prof Christine
Mango, the Vice-Chair of the JSC, appointed by
President Kibaki to represent the public interest.
Interestingly, the same forces have reportedly taken
an interest in the LSK elections, where they have
allegedly sponsored a candidate, who has been on a
spending spree among lawyers around the country.
The idea is that the candidate, if elected to the JSC,
will support these interests to ensure the
appointment of a preferred candidate as Chief Justice
when Dr Mutunga retires from office.
A number of issues surround the proposed removal
of members of the JSC. Two of them, Mr Abdullahi
and Court of Appeal Judge Mohammed Warsame,
were elected by interest groups identified by the
Constitution as entitled to representation in the JSC.
The question is whether elected, as opposed to
appointed, JSC members can be removed without
reference to those who elected them.
Second, what would be the implications for Justice
Warsame if he is removed from the JSC? Will he also
have to be removed as a judge, since misconduct
findings by a tribunal should logically apply to his
position as a judge?
In the same vein, questions have been raised how
the Speaker of the National Assembly allowed the
discussion of Justice Warsame in the House without
fulfilling the requirement of a substantive motion
being moved to discuss him.
Finally, there is fear that the removal of such a large
number of members of the JSC will affect the
operations of the Judiciary by robbing the JSC of the
quorum it needs to operate. The JSC has 11
members, six of whom are proposed for removal.

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