JSC must now break the silent bias against legal academics

The judge hammer a judge in court located on a desk.

The standard by which a judiciary is judged is the quality of its thinking. Courts go beyond resolving disputes. They also shape a nation’s constitutional morality and culture. In this regard, Kenya’s Constitution deliberately opened the gates of judicial office to more than courtroom technicians. It envisioned judges who are distinguished in law, intellect, and character. In practice, however, an unspoken bias persists, suspicion of academics as judges. This bias is neither constitutional nor intellectually defensible.

Articles 166 and 167 of the Constitution prescribe the qualifications for judges of the High Court, Court of Appeal, and Supreme Court. Beyond years of legal experience, the Constitution demands a “distinguished career in law.” The current recruitment culture equates distinction with the bench experience and litigation alone, in most cases. Distinction may arise from scholarship, teaching, jurisprudential leadership, or sustained contribution to legal thought. A university professor who has spent decades interrogating constitutionalism, interpreting statutes, and shaping generations of lawyers squarely meets this threshold. To suggest otherwise is to reduce law to procedure and to strip it of its intellectual soul.

Judicial recruitment in Kenya has, over time, leaned heavily toward those already on the bench and courtroom advocacy. This has created an implicit hierarchy, with litigators as “real lawyers” and academics as peripheral commentators. The result is a bench rich in forensic skill but comparatively thin in theoretical depth. This bias misunderstands the judicial function. Judges are free from arguing cases; they think through them instead. They synthesise facts, principles, policy, and precedent. Academics are trained precisely for this work. Their discipline is reflection. Their method is critical. Their loyalty is not to clients, but to ideas, values, and constitutional purpose.

Judicial virtue

Academics are original thinkers. They question assumptions, test coherence, and demand internal consistency in legal reasoning. They possess fidelity to philosophical positions, an essential judicial virtue in constitutional adjudication where values often collide. Their work frequently becomes the invisible architecture of judgments delivered by others. Far from being detached, many academics engage in law reform, constitutional litigation, judicial training, arbitration, and public service. Even where they do not, judging is not an extension of advocacy. It is a distinct craft, one that prizes clarity of thought over rhetorical flourish.

The argument that academics are not “practitioners” in the strict sense collapses under scrutiny. The bench cannot be entirely seen as a continuation of the bar. A judge does not cross-examine witnesses, negotiate settlements, or advance partisan interests. A judge interprets law, balances principles, and articulates reasons that bind a nation. Overrepresentation of one professional background risks intellectual homogeneity. A judiciary drawn from varied legal experiences, advocacy, academia, and public service, better reflects the complexity of the Constitution itself.

Kenya does not need to rely on foreign examples to prove this point, though many exist. Our own jurisprudence bears witness. Jackton Boma Ojwang, retired Justice of the Supreme Court, remains one of the most intellectually influential judges in Kenya’s history. His judgments were textured, historically grounded, and philosophically alert. More importantly, is that Prof Ojwang had a golden pen and he used it for playing the art. He treated the Constitution as a living text and not a mechanical code. His academic depth enriched constitutional interpretation at the highest level. The good judge was a serial dissenter at the Apex Court; this is not to say that a dissenting judge is the optimum of judicial acuity. The point here is, he was a deep thinker who held his positions so dear. The Presidential Election Nullification of 2017 and the Mohamed Fugicha decision bear this witness, the merits notwithstanding.

The late Prof Patrick Odek Ochieng, Judge of the Court of Appeal, continues this tradition. A distinguished scholar, his judgments reflect conceptual clarity and doctrinal discipline. He demonstrates that academic rigour and judicial temperament are not only compatible but mutually reinforcing. These jurists did not weaken the bench; they elevated it through their intellectual renditions.

Comparative jurisdictions further illuminate this truth. In Germany, constitutional judges are routinely drawn from universities, and the Federal Constitutional Court is celebrated for its rigorous, theory-informed jurisprudence. In South Africa, judges with deep academic and philosophical grounding shaped a transformative constitutional culture rooted in dignity and social justice. In the United Kingdom, the highest courts have long embraced jurists whose authority flows as much from intellect as from advocacy, enriching public law with analytical precision. In India, judges with strong academic inclinations have expanded constitutional reasoning, particularly in fundamental rights and public interest litigation. These jurisdictions understand that diversity on the bench is unlimited; it stretches to intellectual depths.

Academic judges expand the range of judicial imagination. They are more likely to engage in comparative law, theory, history, and policy. This does not produce uncertainty as many imagine; it produces depth. A jurisprudence that speaks only in the language of procedure risks becoming brittle. One that engages ideas becomes resilient.

The Judicial Service Commission stands as the gatekeeper of judicial quality. In exercising this mandate, it must consciously resist inherited professional hierarchies. The Constitution calls for distinction. Academics are part of judicial excellence; they are one of its clearest expressions. To marginalise them is to impoverish the bench and narrow our constitutional future. Kenya’s judiciary will be judged by how deeply it thinks. Distinguished academic minds belong at the centre of that task. For now, they have inherently been put at its margins.