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By rejecting judges, JSC failed in assessing suitability

By | Published Sun, May 15th 2011 at 00:00, 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.

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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.

Because, let’s face it, they had the qualifications for the job. Other judges and magistrates were looking on to see how we treat their own.

But the JSC rejected them all and found Dr Willy Mutunga and Ms Nancy Baraza to be the most qualified. This was based on an unproven philosophical premise that existing judges were not independent, clean or qualified enough to be transitional Chief Justice or deputy.

JSC outcome heightens concerns the interviews were conducted not to assess suitability but to publicly accuse of unsuitability.

The interview process is said to have been a pre-determined sham. And beware that ‘Oomph’ you hear. It is the sound from puncturing the collective morale and self-esteem of the Judiciary so fatally that it will take half a decade to revive. Some lawyers believe that we must take down the Judiciary before we can cure it, like the ancient discredited medical practice of bloodletting.

Yet it is we and our clients who will suffer years of pain as we try to get judicial officers, whether existing or new, to take pride and care in their jobs.

So my unsolicited advice to the principals is simple. Reject the nominees and insist that JSC provide you with a choice of three or five candidates, so that you can constitutionally nominate.

And to MPs, prepare to properly vet any tabled nominees on their judicial philosophy, experience, qualifications, connection to foreign donors and also any liberal views they may hold. Also feel free during the vetting to summon JSC members and publicly grill them on the choices.

The writer is an advocate of the High Court of Kenya.

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