Suits dog hiring of Kenya’s new CJ, DCJ

JSC acting chairperson Prof Margaret Kobia, Judiciary Chief Registrar Ann Amadi and Attorney General Githu Muigai address the press in Nairobi on February 3. [PHOTO:FILE/STANDARD]

NAIROBI: The Judicial Service Commission is under pressure to reopen the recruitment process for the positions of Chief Justice, Deputy Chief Justice and Judge of the Supreme Court.

Beneath the declarations that the commission will not publicly release the criteria used to knock out applicants is a JSC worried about the repercussions of multiple court cases on the credibility of the process.

Divisions have emerged in the JSC itself on the approach the commission should take in defending itself from the cases. A total of three strongly argued cases have been filed against the commission — all faulting the recruitment process and raising credibility issues.

The first suit was filed by the Trusted Society for Human Rights Alliance, the NGO that stopped Mumo Matemu from ascending to the helm of the Ethics and Anti-Corruption Commission (EACC) the first time he was nominated.

The second suit was filed by lawyer Arnold Magina, while the third is a combined effort of the International Commission of Jurists (ICJ-Kenya), Katiba Institute, law professor Yash Pal Ghai and Samuel Mohochi, the ICJ Executive Director.

“The fact of the matter is that the way JSC started this process will lead to a CJ who — no matter how good his or her qualifications — will be hampered by a tainted process, which will make it impossible for the CJ to rebuild confidence in the Judiciary at this critical juncture,” Prof Ben Sihanya of the University of Nairobi said.

To compound the problem is the fact that retired Chief Justice Willy Mutunga had already warned the commission against falling into the current trap of court cases.

In his memorandum titled Reflections on the Process of Recruiting the CJ and the DCJ offered to JSC shortly before he retired, Mutunga warned: “The JSC must be aware of individuals and civil society organisations that are engaged in public interest litigation. The JSC is likely to be engaged in various judicial challenges in the recruitment process: demands may be made for information within the possession of the JSC under Article 35 of the Constitution.”

“It is possible there could be judicial review applications of the JSC processes of short-listing, of upfront disqualification of candidates, the marking scheme,  and criteria for suitability of candidates,” he added.

Mutunga had advised the JSC to pre-empt such challenges by not giving the perception that it had something to hide. He also seemed to suggest that upfront disqualification of candidates on credibility grounds could only happen once the candidates are given a hearing.

Sources within the JSC say the commission is already divided between those who want the suits defended at all costs, including up to appeal, those who prefer a concession and recording of consent and those who want the commission to argue out in court and simply wait for the verdict. The first and the latter groups appeared to have the upper hand if the arguments made in court on Friday are anything to go by.

The JSC told the court in the Ghai case that it will not make public the criteria used to shortlist the candidates.

The day before, on Thursday, the JSC finally wrote back to Prof Ghai, responding to his request for the criteria on which candidates were shortlisted or dropped. Ghai had waited for his response since July 14 until he decided to move to court earlier this week.

“The reasons why particular applicants were not shortlisted were duly communicated to each of them in writing. The JSC is not at liberty to disclose the said reasons to third parties as such disclosure may infringe on the respective applicants’ constitutional rights,” the JSC, through lawyer Njoroge Regeru, wrote.

In the letter seen by The Standard on Sunday, the JSC said, “Blanket disclosure of all information received from third parties in regard to the applicants is neither practical nor desirable at this stage.” Some of the information, the JSC said, is private and confidential.

In their case, Prof Ghai and his team complain that failure to issue criteria used to shortlist the candidates has polluted the process.

On the other hand, Magina wants the court to quash the “extraneous requirements” in the advertisement for the three positions. Some included requiring applicants to bring clearance certificates from, among others, the Kenya Revenue Authority and the Higher Education Loans Board. He wants the current list of shortlisted candidates quashed and the process stopped.