, NAIROBI, Kenya, Jun 11 — The President of the Nigerian Bar Association Augustine Alegeh says Kenya should have had a provision in place for a presumptive Chief Justice to avert the crisis that could follow when Willy Mutunga retires in a few days time.
Should the Supreme Court find, on Tuesday, that his deputy Kalpana Rawal should have retired in January, the Supreme Court bench will find itself short of the five judge minimum it requires to be properly constituted given Supreme Court judge Philip Tunoi cannot sit on matters as he is suspended.
And in an effort to avert a similar crisis in future, Alegeh who is in the country advises that Kenya should have a provision — allowing for the appointment of a presumptive Chief Justice — added to its law.
Speaking to Capital FM News he said, “This concept in Kenya that unless there is a vacancy, you do not fill the position is no longer in sync with International best practices,” he said.
“You know he is leaving on a given date. Why are you going to wait and create this kind of a situation before you fill the vacancy. You need to make some amendments to your statutes. When Dr Willy Mutunga was appointed, there should have been clear planning. And if he was closer to seventy, every Kenyan knew that he was going to leave on a particular date in June. There was no need to wait until the last date to have this succession issue resolved.”
He made reference to the Nigerian system where the incoming Chief Justice is sworn in as the outgoing leaves office.
“What happens in my country is that interviews are done, the designation is known and on the day the Chief Justice exits, all you have is a ceremonial valediction court session for him. After that court session, the person who is designated proceeds to be sworn so there is no vacancy,” he explained.
He says this has proved successful and Kenya would do well to emulate the example. “It is not rocket science.”
“The Judiciary is the last hope of the ordinary Kenyan and they must always understand that the entire nation depends on them for its survival,” he said.
Mutunga’s term is due to expire on June 16.