A case for open selection of chief justice

Court of Appeal Judge Alnashir Visram speaks at the Sarova Stanley Hotel in Nairobi on July 5, 2016. PHOTO | SALATON NJAU | NATION MEDIA GROUP

What you need to know:

  • As we move into an election year, it is critical that the third arm of government should have the face of a neutral person—ideally from a minority group who does not belong to any major tribe.
  • As Kenyans, let us be objective and look at the criterion that counts as we make our opinions known. Let us give all the candidates a fair chance to prove their worth without witch hunt.

Maina Kiai’s article titled "Selection of next chief justice must be devoid of suspicion" (Saturday Nation, July 16, 2016) at the outset appears to argue for openness in recruitment of the next Chief Justice (CJ). However, when one reads between the lines, it is clear that Kiai’s real intention was to try to argue against Justice Alnashir Visram’s candidature.

Apart from Visram, five other candidates were shortlisted for the position of CJ. They are judges Msagha Mbogholi, Smokin Wanjala, Roselyne Nambuye and David Maraga and former Law Society of Kenya chairman Nzamba Kitonga. Kiai did not make reference to the other candidates but chose to attack Visram’s right to appointment on the basis that Visram “was quick to accept an illegal appointment” by President Mwai Kibaki.

I think Kiai is not being fair to Visram. This is because he did not bother to check his facts. Visram never applied to be appointed CJ by Kibaki. He only learnt of the nomination—and yes it was not an appointment — through the media like the rest of us. In that exercise, Kibaki had also nominated Githu Muigai as the Attorney General, Kioko Kilukumi as the Director of Public Prosecutions and William Kirwa as Controller of Budget.

The Kibaki “appointments” were done during the Coalition Government at a time when Kenya was transitioning from the old Constitution. The transitional clauses of the Constitution required that any nomination had to be done after consultation between the President and the then Prime Minister Raila Odinga.

Odinga disputed the nominations saying he had not been consulted while Kibaki maintained that he had consulted his coalition partner. Whether or not consultation took place between the two principals remains a matter of fact that has never been determined.

NO WAY

Either way, there was no way the nominees would have known whether or not consultation had taken place. The nominations failed, apart from Muigai who was eventually appointed through another process. It is, therefore, false and misleading for Kiai to suggest that Visram accepted a “patently illegal appointment”. There simply was no appointment to accept.

That aside, Kiai believes that the main qualification for appointment as CJ is “the ability and capacity to maintain and inspire judicial independence” and that the CJ has no business in the management of the Judiciary which, according to him, is the function of the Chief Registrar. This assertion is incorrect. The CJ is not only a Judge but an administrator as well. According to article 171(2) of the Constitution, he is the chairperson of the JSC, which is responsible for the administration of the Judiciary. He is also the Head of the Judiciary and the president of the Supreme Court.

In these roles, the CJ assigns duties to the Deputy CJ, the president of the Court of Appeal, the Principal Judge of the High Court and the Chief Registrar of the High Court as stipulated under section 5(2) of the Judicial Service Act (Cap. 185B). He is the leader of the Judiciary.

To lead the Judiciary well, our next CJ must be a person of integrity and a person who knows how to manage people and resources. The CJ must be a leader who has the experience and intellectual capacity to guide the court on complex legal issues, protect the Constitution, steer the judiciary through turbulent times and be able to foster a united and functioning institution.

Moreover, as we move into an election year, it is critical that the third arm of government should have the face of a neutral person—ideally from a minority group who does not belong to any major tribe.

As Kenyans, let us be objective and look at the criterion that counts as we make our opinions known. Let us give all the candidates a fair chance to prove their worth without witch hunt.

 

Justus Wabuyabo is an advocate.