From the days of Nancy Baraza to Philomena Mwilu, the position of Deputy Chief Justice has been the most controversy-laden post within the Judiciary hierarchy.
The first two holders of the position left under a cloud of controversy, making the position which deputises the Chief Justice as head of the Judiciary and deputy president of the Supreme Court, almost look cursed.
The first deputy Chief Justice under the 2010 Constitution, Dr Nancy Baraza, resigned in October 2012 after a tribunal that had been formed to investigate her conduct recommended her sacking.
She had been found guilty of gross misconduct for having assaulted a security guard at the Village Market in Nairobi.
INTEGRITY
Dr Baraza was the first and possibly the only major casualty of the high threshold of the leadership and integrity provisions. In an interview she granted to Nation in March 2017, she still holds that she did not get fair justice.
“My experience was bad. It was horrible. I was treated maliciously,” she said.
The former DCJ was succeeded by Justice Kalpana Rawal, who had been a serving judge prior to promulgation of the 2010 Constitution. All was well until her last days in office. Justice Rawal, along with former Supreme Court judge Philip Tunoi, challenged the Judicial Service Commission’s decision to retire them at 70 years.
IMPARTIAL
Their argument, which they lost, was that having been appointed as judges before the 2010 Constitution, they had a contract to serve until the age 74 years, the former age for retirement of judges.
However, this was disputed by her employer, the JSC. In one of the cases that severely tested the cohesion of the Judiciary, both the High Court and the Court of Appeal ruled in favour of the JSC.
An attempt to appeal at the Supreme Court was not successful either. Activist Okiya Omtata objected to the five-judge bench hearing and determining the case, saying they were unlikely to be impartial since then CJ Willy Mutunga and Justice Smokin Wanjala sit in the JSC, which was a party in the matter.
POLITICIANS
Moreover, Justices Njoki Ndung’u, Jackton Ojwang and Mohamed Ibrahim had previously made known their position regarding the retirement age of pre-2010 Constitution judges. In the infamous letter informing then CJ Mutunga of their decision to withdraw their services, the three judges had already cast their lot with Rawal and Tunoi.
It turned out to be a chaotic last day for former CJ Mutunga with the Supreme Court divided right down the middle. Their differences played out in public with politicians also subtly taking sides on the matter with an eye on the 2017 General Election. The result was that the differences brought into disrepute the apex court on the land.
Justice Rawal left the Judiciary but under a cloud of controversy in June 2016 because of the retirement age wrangle.
CRIMINAL
Fast forward to August 2018 and the holder of the DCJ position is yet again in the eye of a storm following corruption allegations levelled against her.
Justice Mwilu, who also sits in the JSC as the representative for the Supreme Court, was arrested Tuesday at the Supreme Court and taken to the Directorate of Criminal Investigations for questioning.
“The evidence in our possession, reveals that Lady Justice Mwilu abused her office for personal gain; accepted a gift in the form of money in circumstances which undermined public confidence in the integrity of her office (and) conducted herself in disregard of the law,” DPP Noordin Haji said in a televised statement yesterday.
“In view of the above, I have concluded that the evidence is sufficient with a reasonable prospect of conviction and it is in the public interest that criminal proceedings should be preferred,” the DPP added.
MISCONDUCT
She faces numerous counts of stealing, abuse of office and failure to pay taxes.
According to Mr Ndung’u Wainaina, the key difference between Dr Baraza’s case and the storm over retirement of Justice Rawal and now the corruption allegations against Justice Mwilu is that in Dr Baraza’s case the misconduct occurred.
“For the latter two, the blame rests squarely with the Sharad Rao commission that vetted the judges and the JSC that conducted the interviews for the Deputy CJ,” he said.