Judicial Service Commission vets two candidates for CJ position

By Moses Njagih

Goldenberg Judicial Commission Judge Samuel Bosire and Justice Joseph Nyamu, both appellate Judges, were literally on the hot seat as Kenyans plucked a fruit from the tree of the new Constitution.

Having applied to be elevated to the helm of Kenya’s Judiciary, they appeared before the vetting team, and they were taken task over their past judgements, brought to account their mastery of law, and audited for credibility and personal integrity as well as suitability for office. They were also asked if they owed their positions to political patronage.

Questions were also asked about their wealth, albeit in camera, and when their past judgements were questioned, Kenyans followed the proceedings live on television — a break from tradition where they simply got their jobs from announcements by the President, ostensibly after consultations with the Judicial Service Commission (JSC).

But yesterday, the JSC at work was newly constituted, and probed hard and deep into their past just as it did when it interviewed two other applicants for top judicial job on Tuesday — Justice Alnashir Visram and Dr Willy Mutunga. Visram was President Kibaki’s nominee for the post of Chief Justice before pressure was brought to bear from lawyers and professional groups as well as rejection by Prime Minister Raila Odinga, forcing the President to recall his name and allow for a more competitive process of appointment.

Justice Bosire appeared at the interviews Wednesday morning.

Kenyans were treated to the rigour and often discomforting process of public scrutiny of appointments, which saw the judges who are used asking questions from the Bench, navigate strange waters as they fielded rapid-fire questions from the panel led by former chairman of Law Society of Kenya Dr Abdulahi Ahmednasir. In court judges run the show, but yesterday they were sitting at the opposite end of the table. Some of their past decisions were dismissed as wanting, ill-thought, biased or in contradiction to the Constitution.

Looking at Justice Bosire, Ahmednasir told him to the face that it was ironical he authored a paper titled The best conduct of judges presented at a judges colloquium because of his "poor attitude". "This was a very good paper but unfortunately by the wrong person, it is an antithesis of the manner of your conduct in court," retorted Ahmednasir.

Bosire defended himself saying: "I was asked to do the paper, I did not give myself the responsibility. It, therefore, means whoever asked me to do it knew that I prescribed to the best conducts and values".

Perceived inefficiencies

A total of 10 people applied for position of Chief Justice while eight more sought the job of Deputy Chief Justice.

That the shoe is now on the other side was evident in the manner the judges answered questions for hours, on a wide range of issues, including academic records, from persons they would — if they were in court — consider their subordinates.

All the three judges interviewed preside over cases at the Court of Appeal, that hitherto before the enactment of the new Constitution last year, was the highest court in the land and whose rulings have no recourse.

The new Constitution, however, created the Supreme Court, which is now the highest court in the land, which will also be chaired by the CJ, although it is yet to be constituted.

Justice Visram on Tuesday found himself facing questions about his impartiality in delivery of justice. Some panellists accused him of bowing to pressure, from powerful politicians appearing before him as litigants.

Ahmednasir, it appeared, plays the role of ‘devil’s advocate’ in the panel because it was him who dug out the perceived inefficiencies or defects in the judgements given by the judges.

It was Ahmednasir who put Justice Visram through the torturous route of explaining how he awarded Sh30 million to former Cabinet Minister Nicholas Biwott as damages for defamation in a book written by British author Andrew Morton.

The amount paid to the former Keiyo South MP is the highest to ever be paid to any individual for defamation, hence the attention it attracted. The judge explained he exercised his discretion and acted from the evidence presented.

Another ruling that Visram made that furthered accusations that he may have acted under the influence of the "big man" push was his decision to decline to give Attorney General Amos Wako a chance to appeal against an order that Internal Security minister Prof George Saitoti be let off the hook from prosecution over the Sh5.8 billion Goldenberg scandal.

Criticised

The judge was also criticised over the manner he handled the case against former Water minister Kipng’eno arap Ng’eny.

Bosire expressed his disapproval over the manner in which Ahmednasir was questioning him, saying he had a disliking for him. Ahmednasir had taken the judge to task over the manner he presides over his court, saying he had not exhibited the best of conducts for his current position.

Justice Nyamu found himself at pains to explain some of his rulings, especially when he presided over Constitutional Court Division. Among them were the controversial issue of the Kadhi’s Court.

Among those in the panel are Justice Isaac Lenaola, a judge of the High Court and Ms Emily Ominde, a magistrate, who in the Judiciary ladder are rungs below the judges.