JSC has no idea what kind of chief justice public expects

The Judicial Service Commission has attracted a suit which seeks to stop the ongoing process for the recruitment of the next Chief Justice.

The JSC, which is only emerging from debilitating litigation that was occasioned by the fights within the Judiciary over the retirement age for judges appointed under the old Constitution, cannot afford another round of cases that risk paralysing the Judiciary, and must proactively manage this new threat in a responsible manner.

In a sense, the JSC can hardly blame anybody other than itself for finding itself in a position where it might have to be defending another line of cases.

To begin with, ever since it was appointed to office, the JSC has not learnt the value of engagement with stakeholders who are interested in the affairs of the Judiciary. In the six years it has been in office, the JSC has not seen the value of general outreach to constituencies that are interested in the affairs of the Judiciary, as would make those stakeholders have a better understanding of how the JSC works, how it makes its decisions and what constraints it has to deal with in its work.
As a result, the JSC has remained an aloof institution that is seen only when it comes out to make the occasional press conference.

No public body possesses all the knowledge it needs to function properly or to meet the expectations of its stakeholders. The value of consultation is that public bodies give themselves a chance to understand the expectations that citizens have about their work. In the case of the JSC, how can it say it knows what its stakeholders want when it has never bothered to find out? Is the JSC even aware that it has a constituency outside the Judiciary which forms the core of its membership?

The JSC has spent the last two years fighting off the cases revolving around the retirement age. While lines of propriety were crossed in the manner in which the concerned judges participated in the retirement age cases, and while public confidence in the administration of justice has been affected, there seems no plan by the JSC, at the end of those cases, to explain what has been happening.

ENDURE DEEP PROBLEMS

Such an explanation would be an act of accountability to the general public which has good reasons to suspect that the Judiciary has endured deep problems over the retirement question but which has not had a formal briefing on what those problems were.

Secondly, such a briefing would enable the JSC to ascertain public expectations on how the recruitment of the Chief Justice should be managed, and thirdly, would also be a platform for the JSC to explain its approach to the recruitment process.

The new suit against the JSC is an act of backlash against the insularity with which the body conducts its business.

The role of stakeholders cannot only be to provide views on the suitability of individual candidates for appointment as Chief Justice. It must extend to being allowed a chance, even before applications are invited, to shape the agenda for the recruitment in broad terms.

In the manner in which the JSC has gone about shortlisting candidates, the body has privileged compliance with the minutiae as a basis for qualifying candidates to the next stage.

Thus, candidates that allegedly failed to produce certificates of compliance from bureaucratic bodies like the Higher Education Loans Board would be deemed not to be suitable for an interview. This is an approach that would bear a lot of fruit if the JSC was recruiting a clerical officer for a registry.

BUREAUCRATIC TRAPS

But it seems hardly suitable when recruiting the leader of the Judiciary. The JSC cannot convince many people that the best person to be Kenya’s next Chief Justice will be determined only by reference to how many certificates of compliance the person is able to present on interview date.

The only reason why the JSC is upholding this fault-finding approach to recruitment is because it talks to nobody. As a result, the JSC has reduced the hiring of the Chief Justice to a question of which candidates are able to dance around the bureaucratic traps that it calls compliance. If the JSC had more humility, it would open itself to the fact that there are many ways of doing the correct thing.

This criticism of the JSC cannot end without referring to the manner in which the JSC has handled the application from Prof Makau Mutua, who failed to make the shortlist.

From the reasons provided by the JSC, he failed because he was unable to clear these low-denominator hurdles that the JSC has placed in the way on candidates. As a public intellectual, a pioneer human rights lawyer and a man of significant learning, Prof Mutua would seem like the type of candidate that the JSC should be interested in interviewing.

The rejection of Prof Mutua’s application signifies that the JSC is in the grips of a bureaucratic leadership that has no higher vision for the Judiciary or the country. It is clear that the JSC is misguided and badly needs new ideas. It cannot get those ideas by cloistering itself.

The interview process for the Chief Justice position has been marred irreparably because the selection criteria applied by the JSC show that it has no idea about what kind of Chief Justice the public expects.

The new suit should be seen not as a threat but as a Godsend. The JSC should use it to abandon the laughable shortlisting approach and make a fresh start.

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