Principals and MPs must accept outcome on nominees

Yes, it is a fact that if we define and establish a nomination process with rules, then we must respect its results.

We cannot change the rules of the game or impose any conditions after the game, no matter the afterthought. And this indeed is the hard reality over the two nominees for the positions of Chief Justice and Deputy Chief Justice, Dr Willy Mutunga and Nancy Baraza respectively.

President Kibaki and Prime Minister Raila Odinga must meet and endorse the names for Parliamentary approval. Neither can the two principals nor Parliament reject the nominees on account of a desire for two or more names.

We must draw useful lessons on the process but any change on requirements can only apply for future nominees.

Powerful presidency

The month shall indeed prove to be a defining moment with respect to Kenya’s Judiciary reforms. It marks the beginning of a process that will lead to the vetting of judges and decisions on who becomes our next Lord Chief Justice and deputy as well as who shall constitute the founding members of the Supreme Court. As the highest Court in the land, it shall serve as a court of last resort responsible for guiding and establishing Kenya’s jurisprudence landscape.

What, then, are the lessons?

Firstly, we must acknowledge we now operate in a new dawn that vests power away from individuals to institutions. All such institutions, including the presidency, must now develop systems and processes to enable them exercise power on the basis of informed decisions. The days of a powerful presidency are no more following adoption of the new Constitution, which has seen power and authority, shared with other institutions, including the Legislature.

However, pertinent questions remain: Are we prepared for the new dawn? Have we put in place systems and procedures that facilitate shared responsibilities without unnecessary conflicts?

Would the hitherto powerful presidency cede some power to new institutions?

It is true that previous nominations under the new Constitution revealed that advisers close to the presidency are yet to adapt to the dictates of the new constitutional dispensation. This state of affairs caused unnecessary conflict and embarrassment to the presidency. Whether the authorities have since learnt anything on this front is a matter of conjecture!

Secondly, the principals and Parliament as a matter of national interest must now endorse the nomination of Dr Mutunga and Baraza. Why? We must respect the fact that on the basis of due process established, the two have emerged as the recommended nominees.

This is not to say that the other competing candidates failed the test, but rather that the credentials of the two matched closely the requirements of the positions.

Yes, some issues have been raised and different people might have different personal preferences, including on personal attributes of the nominees. However, no one thus far has raised a question on competence, integrity, independence, moral uprightness or other critical suitability criteria.

Custodians of justice

Indeed, every public officer must of necessity satisfy a fit and proper criterion with respect to good moral standing in society, if it is to engender public confidence and trust. What constitutes high moral standing — though a debatable issue — is clear in respect to what ethical issues are acceptable and what are not.

Thirdly, as a people, we are certainly capable of assessing the suitability of persons, as their nomination will serve to engender public confidence.

Thus, we must weigh the nominees from the perspective of the demands of the reform agenda in the Judiciary and the public’s expectation with respect to the enormity of the responsibility to overhaul the justice system.

This is essential in order to satisfy the Bill of Rights under the new constitutional order and assure justice to all.

One thing that is clear, however, is that the expectations of Kenyans as regards the justice system is high and demands nothing short of a complete structural and management overhaul.

Indeed, we need to restore the public’s confidence in the Judiciary but we must not be under any illusion with respect to the enormity of the task ahead.

The country needs a rethink to nurture the existing capacity in the Judiciary, including judicial officers who have proven to be beyond reproach and with dependable competence. It is critical we do not condemn all judicial officers without due process that respects the rules of natural justice.

Further, we should not also create a wrong impression that all fresh appointments from outside the Judiciary would of necessity cure all the current ills, nor lack integrity questions. Thus, proper vetting of all appointments from within and without the Judiciary — without any prejudice whatsoever — is paramount.

Let us not play politics with the constitutional appointments as these positions are of wider public interest.

As to the two Principals, this is not the time to be flip-flop but a time to demonstrate resoluteness.

Finally, we must urge the two nominees not to engage in any form of retribution on account of the past or serve vested interests, but to be custodians of justice to all, this being a matter of compelling public interest!

—Comments and suggestions to
[email protected]