Details of why some applicants for the position of Chief Justice were knocked off the race are emerging, as the Judicial Service Commission braves a public outcry to publicise the reasons.
Yesterday, the commission chaired by Prof Margaret Kobia stood its ground that it will not publicly give the reasons for rejecting eight applicants.
The Standard on Sunday has also established that some of the rejected applicants are contemplating challenging the recruitment process in court for what they claim was unfair and unreasonable rejection.
JSC commissioner Prof Tom Ojienda said these candidates know why their applications were rejected.
“The law stops us from giving the reasons for turning down some applications. We have since issued the applicants with reasons for the rejection and some of them have been discussed in the media. Those who really want the reasons should get in touch with the applicants because they have them,” Ojienda told The Standard on Sunday.
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Prof Makau Mutua, touted as a serious contender in the race, was knocked out over what sources said was failure to furnish JSC with Kenya Revenue Authority tax clearance certificate as well as clearance certificate from the Directorate of Criminal Investigations (DCI).
Makau was making his application from the US where he has lived all his working life and where he pays his taxes. According to sources close to him, when he applied for the KRA clearance, the authority advised him to submit his US tax returns instead since he does not pay taxes locally.
On the DCI clearance, Makau is said to have sent his fingerprints to Mazingira House from the US but the sleuths had not cleared him by the time the application deadline closed. He is said to have followed it up with phone calls but was advised that the clearance is only required when he goes for the actual interviews.
He was, however, cleared by the Higher Education Loans Board (HELB).
“I am reading all manner of conspiracy theories as to why he was locked out. I do not know what is true and what is not. What I feel is that the process was somehow rushed to an extent that someone wishing to participate in it from a distance like in his case may not do so,” Prof Yash Pal Ghai, a constitutional lawyer, told The Standard on Sunday.
Ghai says the JSC should have given Makau an opportunity to explain himself before going public with the decision to lock him out.
But it was Justice Jackton Ojwang’s rejection by the JSC which shocked many. By the virtue of his sitting in Supreme Court and having gone through the process before, it was hoped he would easily go through the initial phase of documentation. Sources say his rejection had something to do with his censure by the JSC — the commission issued him with a finding of misconduct over this handling of issues touching on the retirement of judges.
The details as to how JSC framed the rejection are scanty. His rejection has, however, been criticised by Prof Ben Sihanya, a law lecturer at the University of Nairobi.
“The process ought to be fair. It is obviously very unfair. Why knock him out on what appears to be substantial issues in the initial phase?” Prof Sihanya posed.
According to Sihanya, JSC should have assumed that all applicants have the requisite integrity, professional competence, communication skills, good temperament and committed to public and community service until they faced them at the substantive interviews.
He said “hanging” or “pending clearances” by DCI, HELB or KRA should never disqualify candidates because these are government offices “and all JSC needs to do is call those offices and get the information or updates”.
“My point is the process is corrupted because some people appear to have a ready candidate for the position of the CJ and the rest are mere escorts,” Sihanya added.
But Ojienda defended JSC against accusations of bias and said the commission was independent and would give the country the best candidate.
He also denied that there were belated efforts to sneak back the names of two candidates into the final shortlist.
“The fact of the matter is that there were no such pressures,” he said.
Those who made it to the final shortlist for the job of the CJ are Supreme Court Judge Smokin Wanjala, Court of Appeal Judges David Maraga, Alnashir Visram, Roselyn Nambuye, High Court Judge Msagha Mbogholi and Senior Counsel Nzamba Kitonga.
Besides Makau and Ojwang, other applicants who were rejected are retired Judge Aaron Ringera, lawyer David Mwaure, scholar Isaac Rutenberg, Ambasador Daniel Wambura, lawyer Lucy Wanja Julius and Kongani Udoto Kongani Paul Andrew.