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JSC explains criteria for dropping 8 applicants for Kenya's Chief Justice

By Luke Anami and Kamau Muthoni | July 14th 2016

Unsuitability on the grounds of leadership, integrity and ethics are some of the reasons the Judicial Service Commission (JSC) has cited for the elimination of eight applicants for the post of Chief Justice.

A shortfall on personal attributes – that cover temperament, character and communication skills – as well as failure to provide all the requisite documents also saw the eight knocked out of the running for the top Judiciary job.

The JSC panel shortlisted six candidates after reviewing applications “for completeness and conformity with the constitutional and statutory requirements, the JSC Act and criteria outlined in the advertisement for the post".

But the decision, which saw some big names locked out of the race to succeed Justice (rtd) Willy Mutunga as Chief Justice, sparked reactions, with the Law Society of Kenya (LSK) Tuesday questioning why more than half of the 14 applicants failed to make it to the shortlist.

In a letter addressed to JSC acting chairperson Margaret Kobia, LSK President Isaac Okero demanded to know the criteria the commission relied on to select the six.

“I have noted the decision made to shortlist six applicants for the position of Chief Justice following the opening and review of all applications on the 11th instant,” said Mr Okero.

“Considering that this process will deliver to Kenya the next head of one arm of Government, the public interest is expectedly of tremendous intensity with the expectation hinging on the process being and being seen to be open and transparent and in conformity with the Constitution and the law," he added.

“It is for this reason that I feel it is important for the purpose of preserving public confidence in the process that the reasons for which the candidates who did not make the shortlist be made public at the earliest possible convenience,” Okero wrote.

When contacted, Prof Kobia said the reasons why each of the eight applicants were locked out were available but would first be communicated to the unsuccessful candidates before being made public.

“We shortlisted based on the requirements of the advertisement and were guided by the Constitution,” said Kobia, while declining to divulge the specific reasons.

She said the position of the CJ could not be limited to academic and professional qualifications.

“We are looking at someone who can offer leadership that is required of an office such as the one for CJ. Some of them may not have met this requirement,” she explained.

Tom Ojienda, a member of the JSC, explained that the commission had an explanation on how each candidate fared in the selection process.

“The selection was based on a number of factors, including professional qualifications, and on Section 166 of the Constitution,” said Prof Ojienda.

Among those eliminated from the race was Supreme Court judge Jackton Ojwang. In terms of seniority, he is second in command to the current acting Presiding Judge of the Supreme Court, Justice Mohamed Ibrahim.

Others locked out are US-based Prof Mutua Makau, Justice Aaron Ringera, who once headed the anti-corruption agency, and Strathmore University lecturer Isaac Rutenberg.

Justice Ojwang said he had received the disheartening news through the media. Another unsuccessful candidate, lawyer Daniel Waihiga, also said he had not received any formal communication on why he was found unqualified.

Others dropped by the JSC are Lucy Wanja, a commissioner at the Commission for University Education, and the Principal Administrative Secretary in Deputy President William Ruto’s office, Daniel Wambura.

Little-known lawyer Kongani Paul Andrew also did not make it to the shortlist.

Judges Smokin Wanjala (Supreme Court), Alnashir Visram (Court of Appeal), Roselyne Nambuye (Court of Appeal), David Maraga (Court of Appeal), Msagha Mbogholi (High Court) and Nzamba Kitonga, a former Comesa Court of Justice president and judge, and who also chaired the Committee of Experts that wrote the Constitution, are in the running to head the Judiciary.

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