At 9 a.m. of Monday next week (August 29, 2016), the Judicial Service Commission (JSC) will commence the interview process of candidates shortlisted for the offices of Chief Justice, Deputy Chief Justice and judge of the Supreme Court of Kenya. It is that periodicritual that the Constitution mandates the country to go through whenever vacancies arise in these important offices in the Judiciary.
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In a five-part series, I explain why this particular recruitment exercise is of critical national importance, and why we must collectively get the best candidates for these offices. The entire country is in agreement that the consequences of getting it wrong are simply disastrous.
In this first instalment, and in subsequent ones, I address myself to how politicians, especially from the ruling Jubilee Alliance, will try to influence the process. In this regard, the President will have sleepless nights over the process, and why Deputy President William Ruto will take a more relaxed approach, adopting a wait-and-see attitude to the process. The President will not limit himself in the number of strings he will pull; I will evaluate the effectiveness or otherwise of the President’s options.
I will share my views on how President Uhuru sees the Judiciary both as a partner and as an adversary, and how the Judiciary influenced the defining events of his presidency. At a time when the Executive is hell-bent on wielding power as an almighty imperial presidency, and when parliament has been reduced to lapdog status, thanks to one Justin Muturi – the most incompetent speaker in the history of independent Kenya – the need for an independent and strong chief justice cannot be overemphasised.
This is the second time the JSC will undertake the process, and a comparison must be drawn between this exercise and the last one in terms of transparency, inclusiveness, accountability, independence and the robustness of the exercise.The JSC will be under greater scrutiny and will, in fact, be held to a higher standard this time round.
Further, since the Constitution has entrusted such a vital exercise to the JSC, and puts high constitutional premium on public participation, Kenyans must hold it to a very high standard of watchful audit and verifiable integrity.
The interviews will grip the nation’s attention and provide sensational, anecdotal rumours, as well as fuel conspiracy theories. This principally is because in the appointment to these important constitutional offices, the most powerful man in the country, President Uhuru Kenyatta has absolutely no say.
Propensity to meddle
This doesn’t mean that the President is a disinterested officious bystander in the process. Because he (the President) and other politicians have no constitutional say in the process, we need to understand their political anxieties and be alert to their propensity to meddle in the process. Thus the need to insulate and ring-fence the process from narrow political and sectarian influences is of critical national importance.
Victims of their own ethnicity
In this regard, we need to understand three vital schemes that have, by design, important ramifications on the interviews. First, a number of candidates from Central Kenya who were salivating over the office of the Chief Justice were, in no uncertain terms, told not to apply by their kinsmen in power. These individuals include Attorney-General Githu Muigai and a number of senior judges. This explains why no candidate from central Kenya will be interviewed for the office of the CJ. They fell victim of a noxious ethnic calculus designed by their brethren in power.
Push for an older candidate
Second, it was decreed that members of the JSC who are controlled by the government would be under firm instructions to push for an older candidate for the office of the CJ – one who can serve a maximum of four years. The strategy is to have another chief justice appointed before President Uhuru’s tenure comes to an end in 2022. All the candidates who were prohibited from running for the office now will be allowed to contest in four years’ time.
The plan is simple. The next President will have a chief Justice from Central Kenya to provide a constitutional counter balance. This strategy explains why Justice J.B. Ojwang of the Supreme Court was the government’s preferred candidate for CJ.
Third, it was further agreed that,whatever the cost, Prof Makau Mutua, must not be shortlisted for the job. We all know the censorious and, at times injudicious, commentaries the good professor has made against the President and his deputy.
His many predictions that President Kenyatta and William Ruto will age and rot in prison after their conviction at The Hague is still vivid in the minds of those who hold the levers of power. A further calculation by the schemers was that if Prof Mutua was shortlisted, there wasn’t any process or mechanism in light of his gravitas and resume that would stop him from becoming the next chief justice of Kenya. This explains why he was disqualified on grounds no one knows to date.
Feast for the hounds
We also need to be aware of the designs and influence of the motley of lowly characters that would wish to scandalise the process. Paid bloggers, KANU-era lawyers and their younger surrogates, businessmen with deep pockets, tribal chieftains, pseudo experts and aspiring, part-time tribal analysts will all attempt to influence the process one way or the other.
Public participation in this exercise is important, and so is civic education. But we must appreciate that the process needs informed and bona fide public participation; it does not need biased and uninformed inter-meddlers who voice laughable views inspired by ethnic or political bias.
Recently, we have seen many Johnny-come-late characters expressing all manners of derisory views on the process. The various litigations that attempt to disqualify certain candidates must be seen in this light. Some charlatans and known tricksters who favour certain candidates for the offices chief justice and deputy chief justice are the sponsors of most of these litigations.
It must be appreciated that the Judiciary in general, and these offices in particular, play pivotal roles in providing political, social and economic growth and stability for the country. The offices are very powerful organs that shape both the present and future trajectories of the country. This exercise is not about the comfort that a person or groups of people have with office holders; it is about the country getting the most qualified candidate, who has what it takes to steer the Judiciaryin the right direction.
A reborn and recast Judiciary plays a number of pivotal and intertwined roles. It now enjoys unique duties and responsibilities under the Constitution. It is the peoples’ watchman and the sole guarantor of the Constitution. The Judiciary oversees other arms of government much to their infuriation and irritation.
Spotlight on JSC commissioners
In the second instalment, I will explain the critical role and power of the JSC. I will explain to Kenyans the composition of the commission, the internal dynamics and the external forces that play, at times, dialectical roles in shaping the deliberations and the decisions of the JSC. I will offer my views on who are the members of the commission that will literally decide the holders of these offices. I will also explain to the general public why certain commissioners are less influential than others, and therefore have little influence in this important exercise. I will share with the Kenyans why the JSC has prima donnas and dwarfs. I will reveal who is independent among the commissioners, and who the government stooges are, as well as their respective influence and weaknesses.
For instance, when I was a member of the JSC and we undertook the first recruitment of the Chief Justice and members of the Supreme Court, former Attorney-General, Senator Amos Wako surprisingly played the most influential and progressive role in the process. He put to devastatingeffect his personal knowledge of the candidates right from their days in Dar-es-Salaam University, how some of the judges played to the tune of the old political order and why, in his view, Dr. Willy Mutunga was the right person for the job. I will explain why Githu Muigai is not as influential as Wako, and why he is one of the dwarfs in the JSC, metaphorically speaking!
In the third offering, I will give my views on what, in my view, ought to be the criterion upon which the candidates for the offices should be interrogated and judged. Remember the retired Mutunga espoused a certain philosophy of law and politics that defined and shaped the Judiciary during his tenure. What yardstick should we use to judge the candidates for these offices? What are their track records as judges or lawyers? What informs the thrust of the interviews the JSC will undertake?
How do we insulate the process from political and partisan interference? How do we ensure that certain members of the JSC do not rig the process according to their preferred candidates and give outlandish grades for their preferred candidates? Most of these candidates have been previously interviewed by the JSC; what lessons did the commission learn from past interviews?
In my view, the interviews, simply put, must be a contest over the very heart and soul of the Judiciary. Dr Mutunga bequeathed to Kenyans a robust and independent institution. He gallantly fought, at great personal and institutional cost, the subordination of the Judiciary to the Executive. Dr Mutunga provided a liberal and people-centric judicial philosophy that grounded the Judiciary on the twin pillars of constitutional fidelity and the rule of law.
Do Kenyans now want a chief justice that builds on that legacy, or one that will gleefully deliver on a silver platter the Judiciary to the President and his deputy? Do Kenyans want a Judiciary that will be subservient to the Executive,or one that is alive to its mandate? Do Kenyans want an independent or accountable Judiciary, or do they want it dead, like what we now have for Parliament, courtesy of Speaker Justin Muturi, who has single-handedly killed Parliament? These are the stark choices that face the JSC – and Kenyans – as it embarks on the recruitment process.
In part four, I will interrogate in detail the resumes of the six candidates the JSC shortlisted for the office of the chief justice. Who are they, and what are their backgrounds?Are they fit for the office?What are their strengthens and weaknesses? In short, the totality of the candidates’ resumes will be interrogated.
The takeaway here is that the JSC should hold the candidates to high standards of personal integrity and scholarship. A chief justice is no ordinary judge. He must be an erudite scholar of law, and be a man or woman of great judicial sagacity.If he is already serving in the Judiciary, he must share with Kenyans a list of his or her judgments that have defined the jurisprudence of Kenya, or are widely cited in other jurisdictions. This exercise is not a game of chance. It must produce a candidate that will be accepted by Kenyans in acclamation.
In part five, I will probe the candidates for the deputy chief justice and also for the office of judge of the Supreme Court. Often, we underestimate the importance of the deputy chief justice. A critical lesson for the JSC is the need to get a team player that won’t wreck the institution. In this regard, the conduct of Justice Kalpana Rawal in refusing to retire and hanging onto the job will be the background that informs the exercise. Candidates who exhibit similar traits and character flaws should not even be considered.
I reiterate the need for ordinary Kenyans to engage and audit the process. The JSC has constitutional and statutory powers. But it doesn’t have a monopoly that excludes wishes and desires of ordinary Kenyans. Neither can it base its decisions on whimsical or biased political grounds.
Kenyans must refuse any process that is either biased or predetermined by the political elites and their sidekicks. The process must be above board. It must be verifiable.