The job qualification for the next CJ is clear

In the last few months, there have been stories about the Judiciary going back to the old ways of doing things.

There are stories of corruption coming back. There are also stories about delays in determining cases. There are stories that the Judiciary reforms have stalled.

The contemptuous perception of this institution does not stop there.

Some of the stories paint it as a boat listing to one side. It is damaged on one side by corruption. It is also fully loaded on the other side with an ambitious reform agenda.

But the damage by corruption, we are told, is so much that the boat is leaning over to one side. The bags carrying the reforms are also dropping to the side damaged by corruption.

We are also told that the captain is sweating trying to save it but some of the crew have crossed to the damaged side and picked the “best life saving jackets”.

They want to leave the captain alone with a few bags of reforms.

SUCCESSION POLITICS
The Public Accounts Committee (Pac) report a few weeks ago rehashed findings on corruption in the Judiciary.

The report presented the picture of an institution sinking without proper caution.

But the PAC report presented what the Judicial Service Commission (JSC) had found through its own investigations.

The findings in the PAC report were not new; they echoed the JSC report in form and content.

It is surprising that the deriding of the Judiciary is coming at a time when the institution is experiencing a transformation moment.

In the last three years, there are very few other public institutions that have experienced change similar to the Judiciary.

A close look at what has happened to the Judiciary in the last three years reveals a number of changes both in structure and content of justice itself.

Those expressing contempt for the Judiciary are doing so certainly to plan for succession politics because they are not paying attention to the changes that have taken place.

Reflection on these changes reveals a number of things.

A DIFFERENT ROUTE
Before the passing of the Kenya’s 2010 Constitution, the Judiciary was the most derided public institution.

Everyone everywhere had something negative about the Judiciary even when they had not made any contact with any member of the bench or staff in the courts. It was a subject of ridicule.

All this changed with the establishment of a new Judicial Service Commission (JSC) in line with the provisions of the 2010 Constitution.

The JSC chose to break with the past and took radically different route in creating a new Judiciary.

The commission opted to cut off the political patronage networks that influenced appointment of judges.

They changed the style of recruitment of individuals as judges. They changed from “back room” recruitment procedures to “public advertisements”.

The JSC also decided to invite the public to speak their mind on anyone applying to be a judge. They also invited anyone opposed to any applicant to state reasons for doing so.

This approach of recruitment of judges had one immediate consequence. It prevented “jokers” from applying for positions of judges.

It prevented those with political connections and “deep pockets” from applying for appointment as judges. Those “hoarding” money for clients shied away and steered away from the process.

JUDICIARY BOLDNESS
This helped in giving the Judiciary certain standards that the previous regime failed to embed.

The new Judiciary is certainly independent of the executive. I have heard on numerous occasions that the “Mutunga Judiciary” is not the type that politicians can joke around with.

They cannot pick their phones to issue instructions to a Judge. Neither can they summon Mutunga or other judges to meetings as was the case in the past.

The Judiciary is also independent of Parliament. A review of a number of judgments in the last one year reveals a certain kind of boldness that one would not associate with the Judiciary before the 2010 Constitution.

The most important achievements concern access to justice. The number of judges and magistrates has increased while the Court of Appeal is decentralised.

The judges and other staff are now on “performance contracting”. Everyone is showing what cases they are handling, progress of handing the cases, and the challenges they are experiencing.

FATAL CONSEQUENCES
Those deriding the Judiciary have picked on what they call the stalled war on corruption in the Judiciary.

Of course corruption is such an evil thing that it corrodes people’s lives – the corrupt and non-corrupt – in significant ways.

Corruption has fatal consequences on everyone: whether you receive or give bribe or you do not get involved in any way, the consequences of giving bribes to defeat justice (in courts) are grave for every one.

The form of corruption that has crept back into the Judiciary is certainly reducing the gains that had been made in terms of transforming the institution.

The Judiciary began acting on corruption earlier even before the Executive presented a “list of shame” in Parliament.

It acted on allegations of corruption and later sacked several senior officers. Ironically, when the Judiciary attacked corruption, both the Executive and Parliament joined hands to attempt to disband the JSC.

Of course corruption in any public institution is insidious. It begins small and in a subtle manner. It then grows big.

It becomes worse when it commingles with ethnic politics and when it raises funds for elections and funds to defeat justice in a court of law.

THE NEXT CJ
Interestingly, the world is noticing different things in the Judiciary.

Observers of events in Kenya are mesmerised simply by the transformation that has taken place in the institution in the last three years.

Those deriding the Judiciary are probably doing so in order to start a debate on the character of the next Chief Justice.

Many business and political elites would prefer a Chief Justice who can tremble when the hotline rings or a Chief Justice who trembles when summoned to appear to meetings by Parliament or the Executive.

The wish of this group of elites is to have a Chief Justice from among non-reformers.

They would prefer a Chief Justice from among the crew who have picked “the best life saving jackets” and joined the damaged side of the boat.

Very soon non-reformers will begin to tell everyone that “a reformer” is not a quality for the head of the Judiciary. We shall be told that a “manager” is an important attribute.

Of course what this means is that anyone lacking the gut to say “no” to those wishing to have access to funds in the Judiciary and “no” to those seeking to defeat justice are “real managers”.

The job qualification for the next CJ is clear.