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By rejecting judges, JSC failed in assessing suitability

Updated Sun, May 15th 2011 at 00:00 GMT +3

By Charles Kanjama

The Judicial Service Commission (JSC) outcome heightens concerns the interviews were conducted not to assess suitability but to publicly accuse of unsuitability.

Let me be sincere. My first reaction on hearing about the JSC nominees was: "You are not serious".

But it dawned on me that yes, the commission was very serious about its nominees.

Let us assess the JSC choices. There was a pool of ten short-listed candidates, all of whom were cleared by Kenya Anti-Corruption Commission for Chief Justice.

Of these, there were eight judges, four each from the High Court and the Court of Appeal.

For the deputy Chief Justice, there were six short-listed candidates, out of whom four were High Court judges.

The short-listed judges included Moi and Kibaki appointees.

These judges had either survived the 2003 radical surgery of the Judiciary or had been appointed thereafter.

They represented the clean face of the Judiciary. No credible allegation of corruption was made or proved against any of them; else they would not be on the bench but undergoing trial.

Present in this list were some pretty hard-working judges, who start work early and finish late, hearing a multitude of cases in our court system.

Some of them practised as respected advocates prior to their judicial appointment. They all have provided service in various stations despite related inconvenience.

To cope with the volume of cases, some even take work home, because writing judgements and rulings is not a task for the faint-hearted.

They have written tonnes of judgements, analysing facts and law. Of course, you will not find any experienced lawyer who agrees with all their judgements.

We don’t even agree amongst ourselves about the law. That is why most civil cases have two lawyers who possess largely similar facts but sometimes take radically different positions on the interpretation of facts and on the law.

The 12 judges have decades of judicial experience. Several are well-respected by their peers and by the advocates who practise before them.

All of them are very familiar with the challenges the Judiciary has faced in the past due to legal and constitutional limitations, financial constraints and institutional weaknesses, among others.

Senior advocates who practise weekly before these judges and understand the challenges of being a judge did not care to apply for the JSC judicial posts. The judges had a clear head start. They were confident a genuine unbiased interview process would select one of them.

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