It is high noon again at the Judicial Service Commission (JSC). The commission – the agency vested with the power to recruit the Chief Justice and the president of the Supreme Court of Kenya – is looking down the barrel of a gun after the mandatory retirement of David Maraga.
Perhaps that is hyperbole. But it is an apt description of the landmines that the JSC must navigate in the search for the CJ.
It is a serious challenge that the commission has not always met. The framers of the 2010 Constitution thought they had slain the dragon of the State capture of the JSC.
However, the design of the commission and its practice suggest otherwise. Questions of legitimacy and controversy have dogged the process.
“Independence” and “Judiciary” are not words that sit comfortably together in Kenya. That is because the doctrine of separation of powers on which political democracy pivots is an elusive concept in Kenya. Either the elites cannot internalise the predicates of liberal democracy, or they have chosen to embrace illiberalism and dictatorship instead.
Simply put, Kenya lacks an ingrained culture of democracy. That is why the Constitution remains largely an abstraction written on paper, and not in the hearts of the elites and the people.
The independence of institutions can be written on paper, but never actualised in reality. The biggest chasm in Kenya is between legal normativism and lived empiricism. We say one thing but do another. Hypocrisy is our norm.
Unholy concubinage
The hurdle that bedevils the JSC is a constitutional design problem. It is true that the current JSC is a vastly superior institution than its hapless predecessors.
Before 2010, the commission existed in unholy concubinage with the Executive. It was a tool in the kit of the imperial presidency. So was the entire Judiciary, including – and especially – the CJ. Past presidents hired and fired judges on a whim.
The 2010 Constitution sought to cure this malady, but only met with limited success. It purported to sever the JSC from the Executive. The operative word is “purported” not “sever.” They say the dam always breaks at its weakest points. The composition of the JSC is its weakest point.
There is clear intrusion and erosion of the independence of the JSC by the Executive. Most of its members are judicial officers and lawyers elected by their peers on a popular plebiscite.
However, the heavy hand of the Executive substantially dilutes its independence. Of its 11 members, three are direct appointees of the President, one of whom is the Attorney-General. This was not only a fatal mistake, but also rendered nugatory the separation of powers doctrine that would have assured the organ’s independence.
This was an incredible failure by the drafters of the 2010 charter. This deficit together with the capture of several members of the JSC by corrupt cartels has cast a dark pall on the institution.
We can only predict the future by looking to the past. Our evidence is in the last two CJ search cycles. The ink was not even dry on that Constitution President Mwai Kibaki desecrated it. In defiance of the black-letter law, he appointed willy-nilly Justice Alnasir Visram to the office of CJ.
Crucial role
A national hue and cry forced Kibaki to back down and allow the JSC to do its job.
City lawyer Ahmednasir Abdullahi played a crucial role in establishing a modicum of independence at the commission. The key was the correct interpretation of the law to empower the JSC to forward only one CJ nominee to the President for formal appointment.
That is the only reason the country got Dr Willy Mutunga, a former academic and rights champion, as CJ. There was no way President Kibaki would have appointed Dr Mutunga had the JSC sent him more than one name. The experience showed the deep state could be beaten.
Incredibly, an incorruptible “outsider” ascended atop the Judiciary. But while Dr Mutunga survived the vetting, his tenure was strained by Executive interference, corruption in the Judiciary and the calumny of lawmakers. He was an independent CJ but his effectiveness was limited.
The 2016 search for Dr Mutunga’s replacement left a lot to be desired. It was shrouded in opacity, infighting and high stakes politics.
The defective composition of the JSC aside, its vetting is open to capture by malignant forces. Kenya was lauded for conducting the CJ interviews on live television. This was high theafter in the 2016 process where I was one of the candidates.
The idea was to make the process open instead of the “smoke-filled” backrooms controlled by shadowy characters. As it turned out, interviews on live TV can be an empty head fake.
While it gives the appearance of openness and provides a whiff of legitimacy to the process, it is subject to skullduggery. It is all for naught unless the JSC commissioners disclose on the public record how much – and why – they scored every candidate. This is indispensable.
Strategic transformational vision
The JSC needs to recruit a thinker, an intellectual and a jurist who can manage an institution. The CJ should not be someone whose qualification is only having been a judge. It is unlikely such a person would have any strategic transformational vision for the Judiciary and its relationship with the Executive and Parliament.
It needs a person who can stand up to an Executive that does not believe in judicial independence.
The current Executive has demonstrated contempt for the rule of law. That is one reason why the pool of candidates is not very deep.
High ethical standards
The next CJ should not be a careerist. The CJ must be willing to walk away if the Executive continues to be belligerent and renders him or her ineffective.
A serious shortcoming in past CJ searches has been the failure of the commission to require high ethical standards, especially on corruption, of applicants.
It is important that applicants publicly declare their wealth on the pain of perjury. No one should be vetted unless Kenyans know their net worth and how they acquired their wealth.
Finally, the chairperson of the commission during the CJ search has to take full control of it. No member should be allowed to go rogue. If the process is legitimate and fully open to the public – and candidates feel treated – then whoever emerges victorious will enjoy public legitimacy and social capital to institute needed reforms in the Judiciary and in its relationships with the other co-equal branches of government. BY DAILY NATION