In my third instalment, I explain the working of the Judicial Service Commission (JSC), its composition and how it functions constitutionally. Five years after it recruited the chief justice and deputy chief justice under the Constitution 2010, the JSC will repeat that process starting today.
The JSC is one of the most respected and powerful constitutional commissions in the country. The Constitution gives it blanket monopoly on all matters touching on the Judiciary. It hires, promotes and retires all judges and judicial staff. If anyone doubts the powers of the JSC, they should talk to retired justices Kalpana Rawal and Philip Tunoi.
JSC has eleven members and is chaired by the Chief Justice. It has four other judicial officers representing the Supreme Court, the Court of Appeal, the High Court and the Magistracy. Dr Smokin Wanjala represents judges of the Supreme Court; Justice Mohamed Warsame represents judges of the Court of Appeal; Justice Aggrey Muchelule represents judges of the High Court, and; Ms Emily Ominde represents the Magistracy.
The office of the Chief Justice office is currently vacant and since the representative of the Supreme Court Dr Smokin Wanjala is a candidate for that seat, only nine members of the JSC will undertake the recruitment exercise for Chief Justice.
Prof Tom Ojienda and Ms Mercy Deche are the two lawyers who represent members of the Law Society of Kenya. The Attorney-General Githu Muigai, and the chair of the Public Service Commission Prof Margaret Kobia are members too. Then there are two lay members appointed by the President to represent the general public.
Anyone can see the irony of “two presidential appointees” representing the interest of the public; indeed, the words “…presidential… public” make for an interesting oxymoron! Of course they don’t represent the public; they simply speak for two ethnic communities they respectively hail from, and which are in power. That was the undeniable sole calculation of the President when he appointed the two.
Peeling off the layers
The membership of the JSC can be divided into two categories. First, is the category of what I call independent commissioners – members who are elected by their respective constituencies. This group principally comprises of the judicial representatives and the two lawyers representing the members of the Law Society of Kenya. Since their positions are elective, they, ideally, represent and spouse the views of their electorate.
The second category is that of presidential appointees – for all intents, non-independent members. These are the Attorney-General, the chair of the Public Service Commission, who is also the vice chair of the commission, and the two lay members, Winnie Guchu and Kipng’etich arap Korir Bett. This cluster can further be classified into two distinct categories: semi-independent commissioners and the tribal loyalists. In the former are Prof Kobia and Prof Muigai. Due to their position in government, they are expected to wink in the State’s favour in certain matters.
On the other hand, Guchu and Korir owe their positions to a process that was deliberately decided by the appointing authority. Their ethnicity was a determining factor in that process. They take instructions on a case-by-case basis, and I have no doubt that they have been given detailed instructions on the matter of recruitment of the chief justice and deputy chief justice.
Primitive loyalty not guaranteed
It is thus important to appreciate that the President has four appointees in the JSC, while the Judiciary and the law society have a combined five members. But it is not just a question of numbers that will determine appointment of the next chief justice. Some members of the JSC who, outwardly, represent independent bodies, may actual be on the government side, while some of the presidential appointees may exercise independent judgment and evaluation in the exercise.
The JSC, in the recruitment process, does not conduct a vote casting process. Instead it sets and agrees on a marking scheme for every office, and the candidate that attains the highest aggregate grade will be appointed to a given office.
It must be appreciated that the officers the JSC is recruiting for will settle at the pinnacle of the justice system; it then follows that the higher the office, the more technical the criteria for selection. Candidates are marked out of 100% and the candidate that obtains the highest marks automatically gets the job.
As currently constituted, the strongest constituency in the Commission is the one that represents the various courts in the Judiciary. This is the most unified block. Justices Warsame and Muchelule, and Ms Ominde, are a formidable force that acts as strong trade union to advance the interest of their members. As judicial officers, they have witnessed and lived the transformative era occasioned by Dr Willy Mutunga’s tenure. In addition, like all members of the Judiciary, the three commissioners value judicial independence and hold it at a great premium. They are also fearlessly independent. For them, a candidate who is seen as a government project will have little chance.
Prof Kobia is the vice chairperson the commission and will be chairing the interviews. She is the chairperson of the public service Commission in the absence of the chief justice. She has a true wealth of experience in public service and in the area of human resources. Even though she runs a very important state commission, Prof. Kobia is seen as an objective and independent person.
It is highly unlikely that anybody will give her instructions to implement an agenda, to either endorse or oppose a given individual for the office chief justice. To her credit, when the “law politburo” tried to mislead President Kenyatta in appointing Justice Prof JB Ojwang as acting chief justice, she was the cool head that advised the President that he had no such power.
Attorney-General Prof Muigai is another commissioner to watch closely. First, he is not a member of the informal clique that tries to influence the President in the matters of the chief justice. He doesn’t see eye to eye with many members of these informal presidential advisers. Intellectually, he stands on a much higher pedestal than all of them, and there is the personal contempt and disdain that comes with that.
Second, he is not a conspiratorial character and is highly unlikely to participate in any process that predetermines or fixes the result. Third, Githu is fair man. I don’t think he is given to maliciously derailing any candidate who, in his view, stands out as the most deserving, or impose on Kenyans a candidate whom he thinks is unworthy of the office. Lastly, the judgment of history will weigh down on him in the process.
For the purposes of this recruitment, I will rate Prof Kobia and Prof Muigai to be neutral and objective. Both, in my view, will act independently and professionally. Both, again, in my view, have a low opinion of the politburo that seeks to determine the destiny of the Judiciary, purportedly for the benefit of the President and a large political outlay. Both will grade the candidates fairly and objectively.
Picked for the job
The two lay members of the commission were precisely appointed with this kind of process in mind. The government prevailed upon their predecessors to resign so that they could be appointed. It is clear that they were appointed with a specific agenda in mind. Of course, they don’t represent the Kenyan public. They represent the two ethnic communities that are in the ruling Jubilee Alliance. Both are card-carrying members of Jubilee and owe their appointments solely to their political predispositions and ethnicity. To expect professionalism or constitutional fidelity from them is to be foolishly naïve.
Undermine integrity of process
In my view, because of the political interest of the appointing authority in the matter before the commission, there exists an obvious conflict of interest for these two members. In my view, they should not be allowed to participate in the recruitment for the offices of the chief justice and deputy chief justice, as they are incapable of exercising independent judgment in the matter.
As representatives of government, the participation of the two commissioners will greatly undermine the integrity of the process. The commission should disqualify the two members under the Judicial Service Act and Article 10 of the Constitution.
Another important reason the two lay members should not participate in the grading of the candidates is due to the specialised nature of the task at hand. The interviews are technical and very legalistic. Candidates will be questioned on their theories of law, their legal philosophies, the legal thought plans for the Judiciary and an in-depth and microscopic analysis of the jurisprudential values of their judgments. In other words, only someone with a deep appreciation of the law can meaningfully participate in the process. In my view, Prof Kobia will capably handle the other issues of human resources and management from the perspective of an expert in the area of human resources.
There exists the grave danger that first, in light of their political predispositions, and secondly, that as lay persons who are swimming in the deep end of an area they have no idea about, the two lay members of the Commission will mess or skew the grading process by either giving outlandishly high or low grades against some candidates. To protect the very integrity of the process, they must sit out the interviews.
In my view, the judges in the commission will easily cancel the government representatives. But the two lawyers representing the LSK will cast the decisive and determinant votes on who becomes the next chief justice. Prof Ojienda is a senior in the profession and well-respected member of the Bar. He is an expert in both the retail and wholesale politics of the profession. He is not an idealist; he is a pragmatist. On the other hand, Ms Deche, who is new in commission, has been receiving excellent reviews from members of the society. She has been described as very honest, non-tribal and a great proponent of an independent Judiciary.
In hands of Prof Ojienda and Ms Deche lies the fate of the candidates; they will determine who becomes the next chief justice. Indeed, they have a historic constitutional moment in their hands. If we get a progressive and independent chief justice, the credit, in great part, will go to the two of them. If, on the other hand, the JSC appoints a corrupt, incompetent and remnant-of-the-Kanu-era kind of chief justice, the blame lies squarely on the shoulders of Ojienda and Deche. History will either glorify or treat them with odium and disdain, and the choice is entirely theirs.
I am hopeful. Kenyans are hopeful. Many lawyers are confident that our two representatives will, at the end of the day, be on the right side of history.
As a former chair of the Law Society of Kenya and a professor of law, Prof Ojienda knows only too well our history in judicial reforms and the role that LSK has played. When he was elected into the commission, a great trust was placed in his shoulders. This is the test, and I have no doubt that the good professor will pass with flying colours.