Judicial independence on trial as JSC's Isaac Ruto faces bias claims

Former Bomet Governor Isaac Ruto during an interview  in Bomet on April 24,2022. [File,Standard]

A storm is brewing at the Judicial Service Commission (JSC) after a former senior official, two lawyers and a cross section of Kenyans demanded the resignation of Commissioner Isaac Ruto over alleged political bias, just as he is set to participate in next week's interviews for High Court and Environment and Land Court nominees.

The two formal complaint letters by JSC former Vice-Chairperson and another letter by two lawyers were written to Chief Justice Martha Koome demanding the immediate resignation  of Commissioner Isaac Ruto over alleged breach of constitutional neutrality. However, to kick out a commissioner in the Judicial Service Commission, the petitioner needs to petition the National Assembly laying out their allegations and grounds for removal.

In the letter seen by The Standard, former Commissioner Macharia Njeru accuses Ruto of attending United Democratic Alliance (UDA) party meetings, including a recent National Governing Council gathering at State House, actions he terms “unprecedented for a JSC Commissioner.”

Njeru who served on the Commission between 2019 and 2024, contends argues that such open political association violates the Constitution, the Leadership and Integrity Act, and the JSC’s own code of conduct, posing “a big threat to the independence of the Judiciary.”

The complaint lands as the JSC prepares for next week’s high-stakes interviews for nominees to the High Court and the Environment and Land Court a process Ruto is supposed to participate in as Vice-Chairperson.

“To now have a Commissioner who is also the Vice Chair doing the exact same thing that is frowned upon is unacceptable,” Njeru states in his letter to CJ Koome in her capacity as JSC Chairperson.

He reveals that the Commission has historically used active political involvement as grounds to exclude candidates from judicial shortlists, making Ruto’s alleged conduct particularly egregious.

In an interview with The Standard, Njeru said that the danger of having a commissioner who is openly affiliated with a political party is that understanding is he there on behalf of the party.

“The person will be taking directions from the ruling party,” said Njeru.

He said that Rutto’s involvement in the interviews for the High Court Judges can be interpreted as sending a message to the candidates that they must play ball to the Kenya Kwanza administration.

He argued that Rutto was compromising the independence of the judiciary and JSC and it was sending a message to judicial officers that they have to follow or conform to what the administration wants.

When reached out for a response, the Judicial Service Commission did not comment on the matter. The Commission said it would get back on to us on the written questions we shared.

Neither did Ruto respond to our calls and text messages even as his social media spaces remained active with the subject’s debate, one he himself seems to have sparked around the blurred lines matter.

After the State House meeting on Monday, Ruto, who was elected the first governor of Bomet County in 2013 before going ahead to head the Chama Cha Mashinani political party, took to Facebook to express his support for

President Ruto’s legacy projects and his ‘transformative systems’.

“After years of laying groundwork for our country's transformation, Kenya is now moving with renewed focus and determination towards a meaningful change that touches the lives of ordinary citizens.

Our country is currently undergoing a serious reconstruction not just of the dual carriage roads, affordable housing units, sports complexes, health or education sectors among other institutions but of long-term transformative systems that will see Kenya claim its rightful space in the economic sphere,” the JSC Vice Chair posted.

“From the grassroot to the national level, deliberate efforts are being made to strengthen the economy, unlock productivity, create opportunities, tap and empower thousands of young people with concrete and unexplored skills to build a foundation for sustainable growth,” he went on.

And it was this post that attracted political buzz mostly from supporters and critics from Bomet County with some charging him to go for the Bomet County Governor’s seat. Others were of the contrary view.   

As the reactions heated up, in a separate but related demand, a Nairobi law firm in a letter, dated January 28 and written on behalf of advocates Mutuma Nkanata and Murimi Kaari, specifically refers to Ruto’s att tendance at the UDA National Governing Council meeting on January 26 “while clad in full party regalia.”

“It is a settled principle that a polluted fountain cannot send forth pure water,” the lawyers argue. “The overseers of Justice must be clinically insulated from the turbulence of partisan politics.”

They warn that Ruto’s participation in sensitive JSC processes including judge recruitment, disciplinary matters, and administration is now “subject to a reasonable apprehension of bias.”

“Your Ladyship cannot preside over a Commission where the second-in-command openly signals political allegiance while the institution is tasked with the impartial recruitment of the nation’s highest judicial officers,” the letter asserts.

The firm has called for a formal pronouncement from the CJ on steps to “purge itself of this partisan shadow” and to assure the public that the “institutional hygiene of the Judicial Service remains intact.”

Social media commentator Macharia Njeru has called Ruto’s move "unprecedented" and warned that it has "huge implications on the independence of the Judiciary." "Impunity of the highest order! Very disgusting," Njeru said Njeru, a sentiment echoed by Joshua Malidzo Nyawa who argued that "basic constitutional hygiene demands that Isaac Ruto resigns from the Judicial Service Commission and pursues his political interests outside the commission," adding that "he has no business sitting in next week's interviews of High Court and ELC nominees."

The Consumers Federation of Kenya (Cofek) Secretary General Stephen Mutoro also wrote to Koome regarding Rutto’s political activity and perceived bias against commissioner Omwanza Ombati.

In their letter, Cofek says that the presence of Rutto at State House raises questions about compliance with the constitutional threshold expected of a JSC member.

“Given the central role of the JSC in safeguarding judicial independence under Article 172, even the appearance of partisan alignment by a Commissioner may undermine public confidence in the Commission's impartiality,” said Mutoro.

They allege that Ombati during the interviews for the Court of Appeal positions, he may have treated a judge in circumstances that would give rise to a reasonable apprehension of bias, which they allege may be linked to the judge’s decision against him.

“We do not claim to represent that judicial officer, nor has a complaint been formally lodged with us by him; however, the integrity of the judicial appointments process is a matter of immense public interest.”

The Cofek SG wants JSC to decide whether Ombati should recuse himself from the High Court judge interviews scheduled for next week pending an internal review of the allegations.

Lawyer Mohamed Billow said that the biggest problem with Rutto’s appearance is the perception people draw from it since he was not there on a JSC assignment.

He argues that there is duality of roles with him serving as a commissioner and politician which may see conflict of interest arise since along the way they will clash.

“It flies in the face of Chapter six of the constitution and the Leadership and Integrity Act,” said Billow.

He says that JSC is and should be independent from the executive and Rutto’s appearance in the UDA meeting can be interpreted to mean that the commission is in bed with the executive and their decisions may have been influenced by the state.

He however says that a petition to remove him may not pass since Parliament seems to be an extension of the executive and even if it passes there, President Ruto can choose preferred candidates for the tribunal.

“It  (removal process in National Assembly) will be an exercise in futility,” he said.

Lawyer Ndegwa Njiru called for his resignation saying that commissioners should not have links to political parties.

“His direct affiliation and open association with UDA are clear evidence that his impartiality is compromised,” said Njiru.

City lawyer Peter Wena minces no words when it comes to Ruto’s conduct, saying even though every Kenyan has freedom of association and the right to participate in political activity, once elected or appointed to a commission, such partisan politics should cease. "The spectacle of a JSC member campaigning in party colours is a failure of constitutional hygiene. The JSC is the guardian of judicial virtue, not a political wing. For Vice-Chairperson Ruto to parade political allegiance and then presume to sit in judgment of judicial aspirants is to poison the well of justice at its very source. It renders the entire interview process constitutionally suspect and makes a mockery of the impartiality demanded. If he participates in picking judges next week, then every nominee who passes through that tainted room will unfortunately wear the stain of illegitimacy."

Constitutional lawyer Chaka Sichangi says "Kenya's Constitution is not a decorative document; it is the supreme architectural blueprint for our democracy. Article 172 of that Constitution establishes the Judicial Service Commission as the bedrock of judicial independence, demanding of its members the highest standards of integrity and impartiality. When the Vice-Chairperson of that Commission openly wear the colours of a political party and attends its governing meetings, he is not merely exercising a personal right. He is actively dismantling the very barrier the Constitution erected between the judiciary and partisan politics. His presence in JSC reduces a constitutional process to a political audition.”

Governance expert Cyprian Nyamwamu who is the convener of political platform Kenya Bora Tuitakayo says his organisation has appealed to the Chief Justice to stop Isaac Ruto from attending further JSC meetings and not to sit in the panel interviewing judges. 

“If Ruto sits in the panel we shall have the judges so appointed declared a nullity. The CJ is the custodian of the COK2010 and the rule of Law in Kenya and cannot pretend that she does not know that Isaac Ruto is unfit to hold office in the JSC.”

Commissioner Ruto has been in politics over two decades, having served as MP for Chepalungu and as the the first Governor of Bomet County, where he chaired the Council of Governors.

After breaking away from the Jubilee coalition in 2015 to found Chama Cha Mashinani (CCM)

 He lost the subsequent elections and In a surprising move, Ruto was appointed to the critical and sensitive role of Commissioner of the Judicial Service Commission (JSC) in 2021. Fellow commissioners later elected him as the Vice-Chairperson of the powerful body tasked with hiring and disciplining judges.