Mutunga’s secret memo to JSC on next Chief Justice

Chief Justice Willy Mutunga follows proceedings of a case at Supreme Court on June 2, 2016 in which Justice Rawal and Judge Tunoi were challenging retirement age. Mutunga cautioned that the JSC must understand the various forces that would be at play in the recruitment of the next chief justice. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

What you need to know:

  • A highlight of the former CJ’s memorandum was on how the JSC should deal with the expectations of the presidency on the suitability of candidates for appointment as Chief Justice.
  • He said that the argument about outsiders and insiders was not sustainable since even foreigners can apply for positions in the Kenyan judiciary.
  • He also advised the JSC to encourage dialogue with the public and to avoid any perception that it has something to hide.

Before he left office, Chief Justice Willy Mutunga wrote a memorandum to the Judicial Service Commission detailing his views on how the body should approach the process of recruiting the next chief justice and deputy chief justice.

In the eight-page memorandum, Dr Mutunga discussed the political context in which the Commission was operating and noted that “the Grand Coalition government that allowed grand political bargains in 2011 and created sufficient political space for JSC to soar has been replaced by wedge politics”.

He noted the lack of national dialogue to produce agreement on how to approach the country’s next elections in 2017 and concluded that “this irresponsible status quo on the part of the political elite leaves the country dancing dangerously on a precipice of dismemberment and disintegration, and it could flip over”.

According to Dr Mutunga, this context “emphasises the challenge the JSC faces in ensuring that the judicial officers it recruits for the vacancies in the Supreme Court are great lawyers of integrity and incorruptibility;

judicial officers who are independent and perceived to be non-partisan; judicial officers of competence and who are hardworking; judicial officers who will be seen and perceived as judicial officers for all Kenyans, not agents of partisan interests.

A highlight of the former CJ’s memorandum was on how the JSC should deal with the expectations of the presidency on the suitability of candidates for appointment as Chief Justice.

The memorandum reveals that the JSC had a prior engagement with the President, with whom the JSC shares roles in the appointment of the chief justice, regarding their respective roles in such a process.

From the memorandum it seems that there was agreement that any concerns that the President may have regarding the suitability of a candidate for the office of CJ could be taken up with the JSC, but the information would then have to be made available to the candidate who would be given an opportunity to respond to it.

Another highlight is his views about the place of ethnicity as a factor in the appointment of his successor.

Dr Mutunga lamented that the JSC had, in 2011, adopted a policy that resulted in the Supreme Court having representation from the large Kenyan communities, and warned against a repeat of this practice in the ongoing recruitment.

BE WATCHFUL
He urged the JSC to dismiss arguments that some communities cannot produce a chief justice simply because they share ethnicities with the outgoing chief justice, or with heads of other arms of government, or with previous chief justices.

He even suggested a number of practical considerations that the JSC might take into account during recruitment, some of which have assumed some significance in the context of the controversies that have emerged following the announcement of the shortlist by the JSC of candidates for the position of Chief Justice.

Mutunga cautioned that the JSC must understand the various forces that would be at play in the recruitment of the Chief Justice, noting that some of these were internal to the Judiciary while others were external.

Dr Mutunga claimed that the internal forces wanted to return the Judiciary to “its ‘old’ sinful glory” and that there was a lobby that wanted the next CJ to be picked from within the Judiciary because they “understand” the judiciary better than the “outsiders”.

He urged the JSC to clarify upfront that there were no “insiders” and “outsiders” in the recruitment process.

He said that the argument about outsiders and insiders was not sustainable since even foreigners can apply for positions in the Kenyan judiciary.

He also recommended that “a comprehensive and clear statement on who qualifies to be a CJ and a DCJ, and indeed a judge of the Supreme Court, must be made by the JSC upfront.”

“The JSC is likely to be engaged in various judicial challenges in the recruitment process ... demands may be made for information within the possession of the JSC under Article 35 of the Constitution,” he wrote.

His prediction that “it is possible there could be judicial review applications of the JSC processes of short-listing, of upfront disqualification of candidates” has proved accurate as the JSC is currently facing two suits that challenge the manner in which it shortlisted candidates for appointment as Chief Justice.

Dr Mutunga advised the JSC to preempt such judicial challenges by broadly stating that it would consider requests for information on the recruitment process.

He also advised the JSC to encourage dialogue with the public and to avoid any perception that it has something to hide.

The former Chief Justice advised that should requests for information be made, the JSC should consider giving the concerned candidates a hearing, including disclosing to them the marking scheme and criteria for suitability, which can then be followed by a decision.

MAINTAINING CREDIBILITY

The memorandum advised the JSC to maximise public participation by ensuring its interviews are televised, and warned against the JSC getting involved in the debate on whether the next chief justice should come from the private legal profession as opposed from within the Judiciary; and also cautioned that “the notion that the next chief justice should be old enough only to serve for a minimum period of time in order to allow more opportunities for other people to serve is dangerous”.

Dr Mutunga dismissed as a “cattle-dip queue” the view that only judges of the highest court were fit to be considered for appointment and asserted that the Chief Justice could come from any court, including a magistrate’s court, as long as the candidate met the constitutional requirements on appointment.

Some say the ongoing recruitment has been affected by a failure by the JSC to provide upfront information regarding the process that would be followed in carrying out the recruitment.

After the JSC announced the names of shortlisted candidates for the most senior post, in which candidates like US-based Professor Makau Mutua were missing, there was a public outcry that the Commission had failed to produce sufficient information on the criteria it had used in arriving at the shortlist.

After some prevarication, including promises that it would provide clarifying information in due course, the JSC eventually issued a statement which seemed to explain the decisions it had made.

Prof Mutua, for one, had already written to the JSC asking for detailed information on why he was not shortlisted for an interview.

More than one week since he wrote, he informed the Sunday Nation that he has not received communication from the JSC.

Critics say that if the Judicial Service Commission had managed the recruitment process in the manner that the retired chief justice advised, it would have avoided the suits that have now landed in court and which seek to derail the recruitment process.