JSC should follow criteria for choosing Kenya’s Chief Justice

NAIROBI: The appointment of the Chief Justice and Deputy Chief Justice of the Republic of Kenya has reached fever pitch, with Kenyans from all walks of life calling on the Judicial Service Commission (JSC) to give us the Chief Justice we want.

It reminds one of the children of Israel when they confronted the prophet Samuel and told him in no uncertain terms that they wanted a king. The Council of the Law Society of Kenya has weighed in, demanding that the JSC gives reasons why it shortlisted some candidates and left out others.

Such a demand is highly misplaced and totally erroneous because it fails to appreciate the role of JSC, where the Law Society of Kenya is well represented.

When the Commission settles down, the commissioners must remember that the Judiciary is not looking for a seer or wise man from the East with a magic wand full of divine authority or panaceas to cure all its ills.

The demands that have been made on JSC by some paint the image of a Judiciary that has totally broken down; a Titanic that has been invaded by aliens from outside and is sinking fast and, therefore, needs a man or a woman with a messianic commission to save it. What Kenya needs is a Chief Judge.

Socrates said there are four things a judge must do: hear courteously, answer wisely, consider soberly and decide impartially. In addition, the job of Chief Justice calls for all jurists to have credible education, experience and temperament.

The next Chief Justice must be a man who makes the Supreme Court stronger and more consequential, not one who make judges the supreme and unquestioned lawgivers. The next CJ must have a deep commitment to the rule of law and advance the culture of constitutionalism balanced by strong legal authority and a modest political role for the Supreme Court.

The function of the office of the Chief Justice must emphasise the principle of separation of powers but also recognise the need to work with the other arms of Government to protect public interest. The principle of separation of powers is not just meant to preserve the structure and architecture of the state but also preserve public interest as the highest goal.

While the Chief Justice must protect the court’s role as defender of the rule of law, he must always remember it does not make it the ruler of the country on every question that could be framed in the language of the law, even the law of the Constitution.

The court must always do self-appreciation and remind itself that it may not be the final arbiter on all the questions properly confided to it. The Chief Justice must ensure that the court is seen as a legal entity rather than political in its decision-making.

The Chief Justice must ensure that the law, not the judge, governs. If it could be said in truth that the justices of the court were mere politicians and the court itself just another political institution where assertions of self-interest or ideological motives could get the better of reasoned arguments, then the Judiciary would be fatally corrupted.

The people of Kenya look to the courts to vindicate their rights, redress their injuries and offer remedies that accomplish these ends. Courts do not exist to impose layers of technical legalism on a relatively simple Constitution, or to invent and bestow new rights on people in the name of making the Constitution a living document. They must make the Constitution alive by patrolling its borders to fulfill the aspirations of the people of Kenya. Let the Judicial Service Commission appoint the best candidate solely on merit. Considerations in favour of party politics, sex, religion or race must not influence their choice.

Personality, integrity, professional ability, experience, standing and capacity are the only criteria coupled, of course, with the requirement that the candidate must be physically capable of carrying out the duties of the position and not disqualified by any personal unsuitability.

The overriding consideration is always public interest in maintaining the quality of the Bench and confidence in its competence and independence.
Let us allow the Judicial Service Commission to do its work as mandated. After all, the names will be sent to Parliament for confirmation before the President finally makes the appointment.

We must not treat the criteria set by the Judicial Service Commission as a piece of sublime mysticism and high sounding nothing.