Why selection of the next CJ should be of interest
By David Oginde | April 17th 2021
With half of the candidates for the position of the Chief Justice already interviewed, public interest on who will carry the day is steadily growing. The candidates so far interviewed have been as varied as they come. There is no gainsaying that the position of the Chief Justice is extremely important, especially in our kind of democracy, in which the Judiciary is a critical component of the governance structure. Theoretically, the President of the Supreme Court is at par with the leaders of the other two arms of government and is one of the top reserves for the house on the hill under certain constitutional circumstances.
During the public participation phase of the process, various individuals and groups presented several key factors that the Judicial Service Commission (JSC) should consider in their ultimate choice of the next CJ. The Church especially pointed out such critical considerations as character, values, leadership, and general practice of the law. On matters character, there have been situations where holders of very key offices have conducted themselves in a very unbecoming manner. Some of the murmurs and rumours that have come to the public domain concerning the personal lives of some judges, as high up as at the Supreme Court, have been embarrassing, if not totally shameful to the nation. Whereas we cannot bring out every skeleton from everyone’s closet – it is not even wise to do so – yet the holder of such high office must be a man or woman of impeccable character.
On customs and values, though we do appreciate that the world has been bundled into a single global village, yet there are certain distinctives that define who we are as Africans and as Kenyans. Thus, whereas we have prided ourselves as having bequeathed ourselves a most progressive constitution – especially in the chapter on the Bill of Rights, some of the provisions do not reflect our national ethos, having been pushed through by shadowy foreign and local forces. The legislation within Parliament to operationalise some of these has often been an uphill task. In some such circumstances, the proponents have turned to the Judiciary to try and circumvent the huddles. Unfortunately, we have seen instances in which some judges have gone out on a limb to acquiesce such demands in what is clearly judicial activism.
Writing in The Nairobi Law Monthly, Abdiqani Ismail makes interesting observations on the state of judicial activism in Kenya. First, he defines judicial activism as a doctrine which proposes that judges can and should creatively interpret the text of the law “in order to serve a judge’s own visions regarding the needs of contemporary society.” Whereas one can see the latent benefits of such a practice, the challenge arises when such “creative interpretations” are abused for ulterior motives. As Abdiqani observes, whereas strictly speaking the role of a judge is to interpret laws, judges have often ended up legislating from the bench. Such forms of activism can be termed as judicial legislation.
Sadly, this quasi legislation is a trend that seems to be gaining currency within our judiciary, especially on controversial matters of values and morality. Several litigants have filed before courts of law what appears to be carefully choreographed petitions on such matters as reproductive health and rights (read abortion), LGBTQ, atheism, and such other fringe issues, with the sole purpose of having the judges enact legislation.
While being cognisant of the need for independence of individual judges in their rulings, it would certainly be expected that the CJ would professionally set the ethos that guides the Judiciary and the decisions it makes. Setting foundational values in any institution is a leadership task which no leader can abdicate in the pretext of having their hands tied. Thus, the CJ must be a man or woman who will not allow our courts to be turned into abattoirs where our values are mercilessly butchered. We therefore expect that JSC will apply utmost rigour and selfless objectivity in arriving at the name that they ultimately present to the President for appointment.
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