By Ndung’u Wainaina
The retiring Dr Willy Mutunga entered state office of the Chief Justice under unprecedented public scrutiny. He responded to critics and endeared himself to millions of Kenyans and international fraternity. He captured the imagination and aspirations of Kenyans on what a reformed Judiciary should be.
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Dr Mutunga convinced country of his passion, will and commitment to transform a condemned institution. His tenure in office has seen significant progress in judicial reforms and created a firm foundation for deepening reforms. However, it equally has left several critical unanswered questions.
The Chief Justice is retiring when the institution of the Judiciary is facing internal, convoluted, tense transitional times and significant resistance to change, and when public confidence has drastically gone down.
Further, he has left behind a Judiciary populated with conservative and pro-establishment gatekeepers who have been straight-jacketing rather than interpreting the Constitution to its intended objective and purpose. This is unhealthy for a struggling and fragile country weighed down by high-level official corruption and state sanctioned impunity.
The Judiciary serves an important function within a democratic society; it preserves the rule of law. To accomplish this, judges must interpret the law fairly and consistently and remain free from undue political influence. Because of the primacy of having competent and impartial judges, the process for selecting judges, especially chief justice, is of critical importance to the independence of the institution.
A successor to Dr Mutunga must be forward-looking and one who fully appreciates the historical context of the Judiciary. A chief justice who returns the Judiciary to Executive-compliant mode is a danger to the country. That would have devastating effects to the rule of law and the strengthening constitutionalism.
The Speaker of National Assembly has demonstrated the negative effects of Executive-compliance, when he is supposed to be the head of a crucial, independent institution. The National Assembly has compromised its independence of providing effective oversight and the ability to defang the Executive arm of the state. The Judiciary cannot suffer a similar fate.
The Judicial Service Commission has defining acid test. Already, Dr Mutunga has declared the process leading to appointment of some commissioners of the Commission to be politically compromised and tainted with corruption. Judicial appointments must be transparent. An objective and transparent process for the appointment of judges seeks to ensure that the best-qualified candidates are selected, and that such candidates are not indebted to any entity or person in connection to their appointment.
Defining moment for JSC
Every stakeholder must work towards an independent appointment process that has clear definition and identification of objective criteria to select the next chief justice. The selection process must ensure that the implementation of a genuinely transparent public evaluation process is a central element of judicial independence.
The recruitment of the next CJ ought to be fair, transparent, free and exercise high degree of objectivity. The next head of Judiciary should be selected from the most talented legal professionals with competence, integrity, independence and capacity. This merit selection must encourage meaningful public participation in order to limit political favouritism, and ensure that the next CJ is well qualified and has public trust.
The person to be recruited should be unapologetically fearless, independent and impartial, and not some of the spineless political apologists we see hankering after the job.
The individual must have full understanding and grasp of the values and principles of the Constitution of Kenya and its judicial philosophy. The person should have an unequivocal record of defending the independence and institutional integrity of the Judiciary. He/she would command respect and garner support across the members of judiciary family and capture the aspirations of the people of Kenya.
There should be no perception of political affiliation. The political embodiment in the judicial recruitment system, particularly at the level of chief justice and Supreme Court, contributes significantly to the emergence and persistence of corrupt practices.
The person would be someone who has demonstrated, through their practice in law and through service that they have the versatility to deal with complex judicial matters, has unwavering support for the constitution, and strongly support the deepening and consolidating of the judicial reforms.
Enforce judicial code of conduct
As the chief custodian of the Constitution, the chief justice must be a person who has shown unambiguity and no ambivalence in giving life, breath and purposeful meaning to the letter and spirit of the Constitution.
In country where official impunity and disregard of the rule of law has become the norm, the chief justice must be able to effectively, efficiently and unapologetically withstand political pressure, and inspire public confidence of the judicial independence and protection of the Constitution.
The person to be appointed should bear credentials of reaffirming an independent Judiciary that can be trusted by people to justly and expeditiously arbitrate and enforce rule of law without “tapping on the shoulder”. The person should demonstrate the ability to guide Judiciary in developing progressive jurisprudence, accentuate judicial reforms, and ensure access to justice for all across the country.
Corruption and underperformance in the Judiciary are at alarming levels. The next CJ should be a serious enforcer of the judicial code of conduct to ensure integrity, accountability and ethics in the Judiciary. He or she should systematically improve judicial governance and guarantee administrative and financial efficiency.
Judges and magistrates need assurance in career and professional skills development. This process need to be enhanced and widespread to all judicial officers. The Judiciary must not be indebted to an individual but to the Constitution alone.
Seniority in the bench, while important, cannot be criteria of appointment of to the critical office of the chief justice, who heads an independent arm of the state. Well-connected politically-correct candidates with questionable competence must be repelled. A comprehensive criteria for recruitment of chief justice should include both suitability and eligibility that address capacity, integrity, competence, communication skills, independence, performance credentials among others factors. It is the business and responsibility of the every Kenyan and friends of Kenya to ensure the country gets a purposeful CJ to succeed Dr Mutunga.
Writer is Executive Director, International Centre for Policy and Conflict