One more hurdle in Lenaola’s long walk from Maralal to apex court

While he has received the go-ahead from his employer to sit on the bench of the highest court in the land, his fate now seems to hang in the balance at the same High Court in which he served for years.

In particular, the constitutional and human rights division of the High Court over which, until his present nomination, he presided over.

The National Gender and Equality Commission has filed a case with the Constitutional Court seeking to have the nomination of Justice Isaac Lenaola to the Supreme Court rescinded.

The commission, which moved to court a day after the announcement, claims that by appointing Justice Lenaola to replace Philip Tunoi the Judicial Service Commission failed to observe the two-thirds gender rule in the recruitment of the bench.

While Judge Joseph Onguto declined to issue orders to stop the recruitment process, he certified the matter as urgent and fast-tracked its hearing to Wednesday November 2.

Even though Justice Lenaola told the JSC on October 12, that he would be happy whether or not he is selected to fill the remaining vacant position in the apex court, the announcement by the JSC on Tuesday undoubtedly brought some cheer to the ardent Manchester United fan who had on Sunday witnessed his team thrashed 4-0 at Stamford Bridge by their coach’s former club Chelsea.

After all he beat 20 other applicants to the seat, many of them his seniors in both age and within the legal fraternity.

There is no denying that if he survives the present storm Justice Lenaola and the vast constitutional knowledge he possesses will be an asset to the Supreme Court which has at times come under criticism  for overstepping its mandate.

“This Constitution here has my fingerprints all over it,” he told the interview panel in his introductory statement, pointing to the time he served as a commissioner at the Constitution of Kenya Review Commission.

The 49-year-old judge, who also sits on the bench of the East African Court of Justice, defines himself as a pragmatic liberal.

Born in Maralal, Samburu County, Justice Lenaola says he was inspired to becoming a lawyer after witnessing former National Assembly Speaker Francis ole Kaparo in during a case at the Maralal Law Courts in the 80’s.

Needless to say, his determination to excel saw the University of Nairobi graduate become a pioneer lawyer in his community; starting his career as an associate advocate at the prestigious Hamilton, Harrison and Mathews Advocates in 1990.

Justice Lenaola was among the youngest judges to be admitted to the bench while in his 30s in October 2003, serving in various ranks and stations until his appointment to preside over the Constitutional Court two years ago.

The father of two boys has also had a three- year stint at the JSC as a commissioner. In his 13-year career as a judge, some of his rulings have rubbed the other arms of government the wrong way.

For instance, he was part of the three-judge bench that declared the Constituency Development Fund — which had for a long time served as a life-line for legislators to implement development projects without eating into their personal financial allocations — uncomnstitutional.

When Parliament passed the miscellaneous amendments Bill that granted the President powers to appoint the Chief Justice from a pool of three nominees submitted by the JSC, Justice Lenaola was the first to issue orders against it.

A five-judge bench constituted by then Chief Justice Willy Mutunga later termed the amendment altering the Judicial Service Act unconstitutional, thereby preserving the mandate of the JSC.

The Alliance High School alumnus was also behind the ruling that forced the government to register an organisation defending the rights of homosexuals in the country.

When taken to task about the decision Justice Lenaola said the case came down to Article 36 of the Constitution which espouses the rights of association for every Kenyan including gays, lesbians, bisexuals and transgenders.

Justice Lenaola also dismissed an application that filed in the High Court by Chris Okemo and Samuel Gichuru seeking to stop their extradition to Jersey Island to face charges of money laundering, despite their claims that they would not get a fair trial.

Even so the judge, who also serves in the special residual court for Sierra Leone, maintains that he tries to bring sobriety to his judgements considering their impact and practicality.

What many might not know though is that early this month Justice Lenaola, as a deputy principal judge of a division of the East African Court of Justice, was among a panel which dismissed an application filed by the civil society challenging the validity of Burundi President Pierre Nkurunziza’s third term in offices saying it violated the Arusha accord.

The judges ruled that the application was time-barred as it had been filed a month later than the time prescribed.

The High Court judge said he was open to forfeiting the six sessions left before early 2018 when he is scheduled to resign from the East African court if he is appointed to the Supreme Court.

With the dream of sitting on the bench of the highest court in the land almost in his grasp, one can’t help but wonder how the lawyer-turned-judge would have otherwise turned out or performed as a political bigwig or as a man of chalk.

“If I had not done law, I probably would have been a politician or a teacher,” he told the interview panel.