Let’s be honest, president will determine next CJ

Former Chief justice David Maraga(left) and President Uhuru Kenyatta during the official presentation administration of justice report at supreme court in 2019.[Standard]

I have followed, sometimes with cringing incredulity, the ongoing interviews for the Chief Justice position by the Judicial Service Commission. Some of the candidates have been refreshing, some an outright disappointment and others an unmitigated disaster! To its credit, the team chaired by the indefatigable Prof Olive Mugenda has tried to apply fairness to each candidate, even where it was clear the specific train was long off the rails.

It has been most interesting to see the undercurrents of sibling rivalry particularly between the Court of Appeal and the Supreme Court in play. My piece today is however not about the interview process; it is about the more fundamental question of whether it is time to review the appointment process for the CJ and remove the existing myth that this process is driven by the JSC with Parliament and the President playing an ornamental role.

Is there any Kenyan out there who really believes that a President, in an infant democracy like ours, would appoint a candidate they have problems with just because the candidate has been approved by the JSC?

Did the Maraga complaints about lack of access to the Presidency and it’s negative impact on the judiciary teach us anything? In many Presidential systems, America being the principal example, they do not play this pretend game. They allow the President to nominate their preferred candidate and then the candidate is taken through vetting.

That process, while not perfect, recognises the political reality that a President, if they have a choice, would want to have in office a Chief Justice with no competence, but one they can work with, one who not is a distraction to their agenda. The reasoning behind this is that in a Presidential system, we expect the President as Chief Executive to deliver on every aspect of governance.

We blame the President when the judicial system or even the legislature fails. We appoint an independent anti-corruption commission and an independent public prosecutor and send the President packing when the anti-graft agenda collapses. Should we learn something from the answers given by all candidates to the question of the 40 judges?

Without fail, the ones interviewed so far all said they would call the President and resolve his concerns and work out a middle way that enabled the process to continue. They all recognised that the balance of power constitutionally favours the President.

So why not align the constitution in some respects with this reality? I see why the JSC should determine the appointment of Judges at the High Court and Court of Appeal. I see no value even in the appointment by the President of these level of judicial officers since these are simply senior civil servants. But when it comes to the Chief Justice why can we not allow the Head of State to propose a candidate and then undertake a public vetting process in which a special committee of both the JSC and Parliament can participate.

Here, issues of judicial philosophy, competence, capacity and integrity can then be robustly interrogated.  The delicate balance in this process was what Parliament was trying to resolve when they had proposed that the JSC presents three possible names to the President for the appointment of the CJ. It was a pragmatic solution that was unfortunately rubbished by the Judiciary.

As we continually review the working of our constitution, these are some of the issues that will require fresh reflective thinking without our eyes always on rearview mirror mode. It does not help to live in a denial and fantasy world when we all know that ultimately, the President will need to have somehow given a nod to the final candidate if we are to avoid repeating the appointment conundrum.