JSC should pick a Chief Justice who fits aspirations of Kenya

The Judicial Service Commission (JSC) must be clear about what it is seeking to replace in its search for a new Chief Justice.

As Chief Justice, Dr Willy Mutunga will be remembered for several great things.

He entrenched the new Constitution, decentralised the Court of Appeal, expanded the High Court, furthered the use of ICT, built a museum, humanised the traffic courts and, being an ex-detainee, nudged judicial staff into humility until they learnt how to greet accused persons.

These accomplishments deserve continuity.

Dr Mutunga’s negative legacy, however, is something that the JSC must face squarely, take partial responsibility for, and commit itself to wiping out.

On his last day in office, Dr Mutunga walked out of the courtroom in the middle of the submissions of Senior Counsel Pheroze Nowrojee, his friend and mentor. Was there no other means by which the head of the Judiciary could respectfully set aside a lawyer’s futile arguments?

We had witnessed Dr Mutunga’s dismissive impatience before when he delivered the two-minute judgment on the presidential petition.

In a judicial system where precedence is everything, are we to assume that his example of petulant boycotts is going to become standard operating procedure in all our other courts, from the Court of Appeal down to the district magistrates courts?

We cannot afford to maintain such a precedent.

Neither can we afford to keep up the divisive culture of sneaky, colluding, undermining, backstabbing framing of innocent people that thrived under Dr Mutunga.

From choreographed demolition pieces in the press (written by “the usual suspects”) to leaked official correspondence and wild allegations of wrongdoing that have ended up in dramatic, money-gobbling tribunals that chase lies in circles for weeks on end, Dr Mutunga seemed helpless against what senior advocate John Khaminwa termed a cartel of lawyers controlling operations at the Judiciary.

How could our Chief Justice be held captive by a gang of greedy lawyers yet, in December 2015, he told the world via a Dutch newspaper that in this “bandit economy” of ours, “the connection between cartels and politicians must be broken”? We need to know why Dr Mutunga was not able to break up the cartel in his own backyard.

ADMINISTRATIVE SKILLS

Further, his administrative skills were often wanting.

His famous clearing of the backlog of cases, in reality, entailed closing files midway because litigants had not followed them up in the courts for more than a year. This method does not deliver justice.

We need a real remedy for the countless adjournments that make litigants lethargic.

The JSC must show superior understanding of the job description of Chief Justice and conduct interviews that embrace the basic tenets of human resource management.

First, this is a job for a manager. Find the person who can best set up thorough and judicious administrative structures that will ensure sensible distribution of case loads and efficient management of time by judicial staff who are inspired to be at work on time and are committed to finding a fair balance between their seminar needs and the needs of a justice-seeking public.

Secondly, a judge of the Supreme Court requires superior writing and deductive skills that come with sustained legal practice.

But the job also requires some fundamental soft skills.

Give us a (wo)man who has patience, refined listening and observation skills, candour, strength of character to tolerate an alternative opinion, and the ability to remain calm always, even under fire.

Thirdly, the JSC must respect applicants and their time. Scrutiny need not humiliate people.

With proper criteria, an efficient panel can probe a candidate thoroughly within 45 minutes and it does not require the “burn and destroy” tactics that were employed the last time it conducted interviews to fill the position of Chief Justice.

They included George Kegoro’s contrived press articles purporting to review the career of each applicant and culminated in Ahmednasir Abdullahi’s shrill and vulgar aggression during the televised interviews.

Scheming malice is not a mark of fair play. Rudeness is not a sign of intelligence.

These manoeuvres discourage highly skilled, self-respecting people from applying.

So, the JSC must not fall prey to such crude methods to foist a preferred candidate on us.

What we need is a transparent process that will respect the demands of history and match the job at hand to the right personality and the right skills set.

Dr Nyairo is a cultural analyst. [email protected].

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Charles Onyango-Obbo’s column will be back in a fortnight.