Inside the battle for vacant Judicial Service Commission slot – Nation

Law Society of Kenya president Eric Theuri (left) and lawyer Omwanza Ombati.
By  Sam Kiplagat
Court Reporter
Nation Media Group

Daggers have been drawn and the stage set for what promises to be a bruising campaign to elect the Law Society of Kenya (LSK) male representative at the Judicial Service Commission (JSC).
While the election is about 60 days away, lobbying and canvassing are in top gear with regional caucuses retreating to devise the best way to approach the election.
Even though two candidates have so far thrown their hats into the ring as they seek to replace Mr Macharia Njeru, whose term is coming to an end, political and regional interests have emerged as various interested parties jostle in a bid to get their person to bag the seat.
So high are the stakes that two weeks ago, Nation understands that lawyers from Mt Kenya met in Kiambu under the Mt Kenya Foundation patronage to seek ways of having the region retain the seat, even as other lawyers plot to have the seat go elsewhere for regional balance.
The lobbying, Nation understands, is also high-stakes as it has seen members from the executive dragged into the lawyers’ body as they seek to have a friendly candidate.
The current LSK president Eric Theuri and Omwanza Ombati, both of whom have been in private practice for more than 18 years believe they have what it takes to be the lawyers’ representative at the JSC and the ‘truest independent’ voice at the commission.
The commission has eleven members as per Article 171(1) of the constitution representing four different groups.
Read: LSK elections marred by nomination protests
Five members are elected from the Judiciary including Chief Justice Martha Koome who is the chairperson of the JSC, one judge each from the Supreme Court and the Court of Appeal and a judge and magistrate elected by the Kenya Magistrates and Judges Association (KMJA).
The other group represents the Executive and includes Attorney General Justin Muturi, a nominee of the Public Service Commission (PSC), while the President appoints two members, who are not advocates, with the approval of Parliament, to represent the public and lastly, the LSK elects two representatives.
According to Mr Theuri, the LSK representatives are the true independent voices who represent the public.
He believes he is best suited for the job having steered the LSK to greater heights during his tenure. Mr Theuri also believes that with his experience at the LSK, he can bring more changes to the JSC and make the Judiciary more effective and efficient.
Whereas Mr Theuri is campaigning on a tried and tested kind of leadership platform, Mr Ombati has offered his candidature on accountability and improvement of service delivery.
“If elected, I will go to the JSC with a better understanding of the Judiciary and the LSK and what works best. I will not be someone learning on the job,” he said.
Mr Theuri further says that previous LSK presidents who joined the JSC as commissioners such as Ahmednasir Abdullahi and Tom Ojienda, did a fantastic job. “It is an advantage having served at the LSK because one has been the voice of advocates,” he said. 
He also pointed out that having served previously as the chairperson of the LSK Nairobi branch and later as the LSK president, as well as a member of the court users committee for the Supreme Court and bar-bench committee member for the Court of Appeal, he knows the challenges facing the Judiciary and some of the solutions.
Mr Theuri said if given a chance to serve at the JSC, he will not only fight for the welfare of judicial officers but also ensure they are accountable.
Read: Breaking the bias: 20 women join LSK leadership race
He noted that there have been complaints of alleged corruption, laxity and laziness on the part of some judicial officers and says he will ensure cases filed at the JSC are speeded up and the matter dealt with expeditiously.
Mr Theuri said there are complaints filed against judicial officers that have been pending at the JSC for months, adding that he will ensure that the hearing process is handled faster and in a transparent manner.
He defended his tenure at the LSK saying he stood up against the Executive and filed a number of cases, some of which were successful and put a stop to the executive’s excesses.
“We have been up against an Executive that has an appetite of weakening the mandate of other institutions. We need a commissioner who is bold and courageous for a strong JSC,” he said.
For Mr Ombati, five years is a long time to elect someone who will later turn out to be a disappointment.
He says that for the 19 years he has been in private practice, he has paid fidelity only to the constitution and the people of Kenya.
Mr Ombati said lawyers can elect a candidate who will represent the interests of the Society, strongly and with a deep sense of institutional memory.
“I have deliberately studied trends in institution building and service delivery having held similar but ad hoc positions, alongside some of the most brilliant and experienced members of the Society. I present my candidature because five years can be costly- if we get it wrong,” he said.
The lawyer said the JSC can benefit from institutional innovation he has identified including the lingering corruption (real and perceived), the need for improved service delivery and the need to make the practice environment within courts responsive to the needs of litigants and advocates.
“The solution to corruption in the Judiciary can be found in tightening the Judiciary’s internal disciplinary mechanisms, but this will only address corruption at a lower scale than when the process of rooting out corruption takes into account the perspectives of advocates. Should a body be constituted to audit and respond to corruption concerns, then it needs to consist of persons most affected by the cancer of corruption,” he said.
While stating that the JSC plays both management and oversight functions in the Judiciary, Mr Ombati is of the view that through his contribution as a practitioner, the commission can achieve accountability for its own decisions, apart from enforcing accountability of judges and judicial officers.
“There are instances where the JSC has been sued on account of lapses in the disciplinary processes and courts found that there was a need for procedural fairness,” he said adding that his legal philosophy and experience in matters of administration will be unique aspects that the JSC can utilise in streamlining processes for internal accountability of the commission, judges and judicial officers.
Mr Ombati said the JSC has a chance to improve the practice standards by developing consistent practices on case management, and complaint resolution standards at the JSC and centralising the role of researchers at the Judiciary.
Read: Eric Theuri: What ails LSK
“This is a critical entry point for advocates, who can provide quality legal service through institutionalised practice standards. This will further lead to the employment of more advocates in the Judiciary, hence improving the overall performance of the JSC and the Judiciary,” he said.
Both advocates agree that the criteria for the appointment of judges and judicial officers should reflect the reality of the legal profession and also the country’s regional demographics and balance.
“The approach in appointments can therefore be restructured to provide a fairly competitive environment where private practitioners can have a real chance at accessing opportunities. This will deepen member relations with JSC while infusing competent service to the Bench and Judicial offices,” Mr Ombati said.
The lobbying for the seat is being seen as a move by the lawyers’ body in trying to be assertive on JSC decisions, which includes the hiring of judicial officers.
 Speaking during a lawyers’ forum, Mr Abdullahi said it was unfortunate that very few advocates from private practice joined the Judiciary in the recent recruitment of judges.
He said that at the Court of Appeal, for example, only one advocate from the Bar joined the bench.
Mr Abdullahi attributed this to the lack of a strong voice to represent the LSK at the commission. “It is true that judges have a huge representative at the JSC but if we have a strong voice representing the LSK, we can get a bigger number during such recruitment,” he said.
He further pointed out that no judge has been subjected to disciplinary action in the past five years, despite a huge number of complaints made to the JSC.
Mr Abdullahi said he also filed a complaint against a judicial officer but the commission did not reply to him until six months later and after following up on the matter, he was informed that it was dismissed because the complaint was not valid and amounted to interference with the independence of a judge.
He alleged that there are judges who have not delivered judgements and rulings for more than six months yet the commission does not feel like acting on such complaints.
Senior Counsel Abdullahi does not shy away from speaking of alleged corruption in the Judiciary. According to the lawyer, a corrupt Judiciary makes it difficult for lawyers to effectively ply their trade.
The JSC recruited seven judges of the Court of Appeal last year including Justices Kimaru Luka Kiprotich, Lydia Achode, John Mativo and Frederick Ochieng. Others were Justices Grace Ngenye, Abida Ali-Aroni and Gachoka Paul Mwaniki.
Last year, 20 judges of the High Court were also recruited and appointed by President William Ruto. Nine members of the Tax Appeals Tribunal were appointed after Parliament enacted the Tax Appeals Tribunal, which bestowed on the JSC the power to appoint members of the Tribunal.
Similarly, the 18 members of the Political Parties Disputes Tribunal were appointed after Parliament amended the Political Parties Act to expand the membership of the Tribunal within an election year in anticipation of electoral disputes.
A total of 1,064 Judicial Staff were appointed to various roles during the financial year. These include 900 Court Assistants who are critical for court processes, especially in registry operations, seven facilitative staff in the Office of the Chief Justice and nine internal auditors.
Others are 21 technical staff in the Directorate of Building Services which is coordinating the Judiciary’s ambitious Infrastructure Master Plan and 26 ICT officers who are supporting the extended deployment of technology in the administration of justice.
Current JSC members
1.    Chief Justice Martha Koome- Chairperson
2.    Macharia Njeru- LSK male representative and the vice chairperson
3.    Justice Mohammed Ibrahim- Supreme Court representative
4.    Justice Mohamed Warsame- Court of Appeal representative
5.    Justice David Majanja- Kenya Magistrates and Judges Association (KMJA)
6.    Chief magistrate Everlyne Olwande- KMJA
7.    Attorney General Justin Muturi
8.    Jacqueline Ingutiah- LSK female representative
9.    Isaac Ruto- male public representative
10.  Caroline Nzilani- female public representative
11.   Charity Seleina- Public Service Commission
 Past representatives
1.    Prof Olive Mugenda- 2018- 2023
2.    Paul Kihara Kariuki- Attorney General
3.    Deputy Chief Justice Philomena Mwilu- 2017- May 2022
4.    Patrick Gichohi- PSC representative
5.    Felix Koskei- male public representative
6.    Dr. Mercy Deche- LSK female representative.

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This came after National Steering Committee meeting chaired by President William Ruto.
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