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JSC must hire the right person to be Kenya’s Chief Justice

KAMOTHO WAIGANJO
By Kamotho Waiganjo | July 31st 2016

NAIROBI: Barring injunctive orders in the ongoing suits, the Judicial Service Commission (JSC) will later next month enter into phase three of the all-important process of filling vacancies in the Supreme Court, by interviewing the applicants shortlisted for the three available positions. It is unfortunate that due to ineptitude and high octave shenanigans we ended up in the situation where we do not have a Chief Justice and Deputy Chief Justice and cannot even form quorum in this apex court.

The sooner this malady is cured, the better for this nation. With an election fast approaching you can imagine the nightmare we would go through if the process dragged on and there was no court to hear the inevitable Presidential petitions in 2017.

It is important that the pending cases be prosecuted urgently, including any appeals that may arise, so we do not end up with a constitutional and political crisis next year. We also need a Chief Justice in office to carry out critical constitutional responsibilities, including setting up benches to determine critical constitutional questions. Such responsibilities remain unattended, to the great prejudice of numerous Kenyans seeking judicial intervention.

As the JSC starts the interview process I suggest that the following qualities should define the next head of the Judiciary and the deputy. The principal quality of these two premier leaders must be unquestionable integrity and zero moral turpitude.

Of the three arms of government, the Judiciary is the one institution where the speck of dirt, whether it be on professional improbity or character defect cannot be permitted to attach, especially on the heads of the court. For all his administrative faults, we all respected Dr Willy Mutunga for his unquestionable integrity and sobriety in character.

We must not lower the bar and the JSC must be brutally thorough on this question. It is however important that unsubstantiated allegations of vice not be used as witch hunts to lock out candidates who the operational cartels are uncomfortable with.

Secondly, the next Chief Justice and the deputy must possess the intellectual mien deserving of the court. This intellectual competence must however be combined with administrative capacity that enables them to give cogent policy and administrative leadership of the entire Judiciary.

If for any reason the Chief Justice the JSC chooses has administrative challenges, this challenge must be deliberately balanced with a deputy who has substantial administrative strengths. Each of the three Judges in the Court must however bring intellectual gravitas so that the court measures up to others in the region and internationally.

Finally, the JSC must in filling the three seats respect the gender component and respond to the regional and ethnic diversity question. In its early years, the Supreme Court will largely be associated with its role in the pre-eminent political dispute of the country; the Presidential election petition. In light of the regional nature of our politics, the question of who sits in the court and who therefore determines this critical dispute will for a while be assessed through regional and ethnic lenses. I long for the day where “the content of their character and not the sound of their names” will define our view of public officials but we are a long way from there.

One final consideration, which though not critical, is nevertheless important, is the need to have at least one of the two top seats emanating from the Judiciary.

While there was need in the initial transition to bring outsiders at the helm of the Judiciary, I am convinced that having at least one of the top seats coming from the Judiciary will not only enhance confidence in the office by other judicial officers but will also reduce the internal strife so evident in the Mutunga years that did not always augur well for judicial reforms.

I however hope that at least one of the three available seats will go to an outsider who can help in the cross pollination that the Judiciary needs and that the appointees will include persons young enough to professionally mature in the court and assist in succession planning. For a court so critical in determining the software of this country, I pray we do not get its composition wrong.

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