This is what to consider in finding the next chief justice

As the interviews are finalised to select the next chief justice, it is necessary to reflect on how its choice will respond to the historical issues that judicial reforms have been trying to address.

Throughout the repressive history of the 1960s to the 1990s, Kenya had a judiciary, which should have attenuated the injustices of the time. In the Kenyatta and Moi eras, a crackdown on political opponents, taking the form of assassinations, detention without trial and the use of sedition laws, characterised the country.

The reforms that allowed Mwai Kibaki to come to power also exposed his presidency to open competition, and provided a real opportunity for a political upset against his incumbency.

However, the judiciary struck again, playing a decisive role in the events that controversially handed the presidency to Kibaki for a second term.

The role that the judiciary played, in swearing-in Kibaki for a second term, was not without consequence to its standing.

As the country descended into violence, the courts became demonstrably irrelevant and people refused to go there for a resolution of the monumental crisis that followed.

Not surprisingly, the future role of the judiciary remained a central point of discussion in constitutional reform whose resumption the violence motivated. The result was the current arrangements where the country settled on the establishment of the Supreme Court. It’s primary jurisdiction would be to resolve the country’s ultimate political dispute: The winner of presidential elections.

In the first such dispute that the newly-established court had to address, it did so in a controversial manner and is yet to recover from a crisis of confidence that followed its handling of the presidential election petition. If all factors remain unchanged, there is no expectation that the court will receive another presidential petition in the near future, a fact that will raise questions as to the utility of the court in the first place.

The problems of the Supreme Court have since been compounded by the infighting that characterised the eventual retirement of the former deputy chief justice, Kalpana Rawal, and a former judge of the same court, Philip Tunoi, who left before grave allegations of bribery that had been levelled against him were resolved.

The internal disputes in the Supreme Court exposed the fact that villainous political operatives can be found anywhere, including in the Supreme Court.

This is the context in which the judicial commission has to choose the next chief justice. In the circumstances, the first signal that its selection should send is that the Supreme Court, and the judiciary as a whole, is prepared to become politically relevant again, after playing itself into irrelevance after the 2013 elections, and after an ugly display in the retirement saga, which revealed the strong political tentacles that imprison a number of its current judges.

During the on-going interviews, one member of the commission has been exploring with the candidates the idea of a chief justice that “can work with the government”. It is to be hoped that “working with the government” does not mean a replication of what the Supreme Court operatives did during the retirement saga.

With the interview of US-based professor, Makau Mutua, as the major outstanding business, the two best performers in the interviews have been Justice Smokin Wanjala and lawyer Nzamba Kitonga. Subject to Prof Mutua’s interview, the two would be considered the front-runner candidates for appointment as the next chief justice.

IRREPARABLY DAMAGED

The candidature of Justice Alnashir Visram must be considered irreparably damaged by the award of Sh26 million that he received as damages for defamation, against The Standard, newspaper occurrence which, when juxtaposed with the fact that the same judge also awarded a former cabinet minister, Nicholas Biwott, a large defamation award in 1999, presents him as too bristly and anti-freedom of speech.

While Justice David Maraga was fine in the interview, Justice Mbogholi Msagha’s run must also be considered ended, partly because the commission bullied the judge and helped to make him look really bad in the interview.

The commission appears not to have taken Justice Roselyn Nambuye seriously and seems to have shortlisted her only because it wanted a female candidate to balance the fact that it intends to select a woman for deputy chief justice.

The environment of the judiciary has a way of exerting its own expectations on selecting the next chief justice and will favour a candidate that fits into the internal status quo, rather than one who represents the unknown.

While this is understandable, the more important concern ought to be how the leadership of the next chief justice will project judicial power as a factor that can stabilise a country that is polarised.

As a result of poor political leadership, there is little hope for overcoming the polarisation. On this consideration alone rests the eventual credibility of the on-going selection. It is also a consideration that would rule out a large number of the candidates who have been interviewed.

The choice of the next chief justice should be guided by the following hypothetical scenario: It is August 2017 and the opposition, Cord, is disputing the results declaring Jubilee has won the presidential election.

Which individual, as chief justice, would give the opposition the reason to trust the Supreme Court again, and thus file another petition against the results, while the Jubilee coalition does not cry foul that the court is compromised in favour of Cord?

The candidate that answers this question is our next chief justice.

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