Stop attempting to intimidate JSC in its bid to replace Judiciary head

From left: Supreme Court judges Willy Mutunga, Mohamed Ibrahim and Smokin Wanjala during a court proceeding at the Supreme Court in Nairobi on on June 8, 2016 in the case in which Deputy Chief Justice Kalpana Rawal and suspended Judge Philip Tunoi are challenging the retirement age for judges. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

What you need to know:

  • Let us demand this from all institutions.
  • The expectation that the Judiciary must be different when every other institution involved in the delivery of justice is rotten is simply unrealistic.

The exit of Dr Willy Mutunga from the Judiciary has opened the Judicial Service Commission (JSC) to an avalanche of unsolicited advice. The JSC should, of course, listen carefully to all incoming suggestions. But it must retreat to ask tough questions about the ideal candidate for chief justice. It must treat incoming opinion with some suspicion because we, Kenyans, have the uncanny habit of channelling through the unsolicited opinions biases common to our fragmented reality.

Put simply, there is no single Kenyan aspiration for who the next Chief Justice should be. Indeed, I am not even sure that independence, integrity and professionalism would consistently feature at the top of our aspiration. Instead, we have a multiplicity of aspirations; most are refracted through our heavily politicised and ethnicised lens and interests. It doesn’t matter how urbane and sophisticated we present our argument or whose alternative view we dismiss as we present our sanitised version. Only recently, the interests lined up to influence this choice showed their hand as they defended two judges who were past their retirement age.

The only valid advice the JSC should take is that encouraging them to keep fidelity to the provisions of the Constitution and related enabling law. The law sets out the kind of chief justice Kenyans deserve. It also sets out a process by which such an appointment must follow. The law safeguards the autonomy of the JSC and mandates who its members are. There are some members of the JSC we might not like for a whole variety of reasons, but we cannot elect to lecture them on how to conduct this affair as long as they operate within the parameters of the law.

The JSC is enjoined to keep complete autonomy from all external influences in the process of determining the suitable candidates to be CJ or Supreme Court judge. This point is important. We have already noted the desire on the part of a section of the political class to influence the transition. So blatant was this that a judge of the court issued orders that were glaring not just in terms of their attempted abuse of the court process, but also in terms of the hollow thinking. As I listened to this judge meander through a subsequent written judgment, I was struck at how easy it is to undermine the exalted status of the court.

Thus the main danger in the selection of the next CJ is interference, politically driven or otherwise. The current Executive has attempted all tricks in the book to gain control of the courts. There were instances the President procrastinated swearing in judges and the Executive even embraced a Bill that was evidently unconstitutional. Occasionally through Parliament, they orchestrated propaganda and smear campaign whose single aim was to discredit the court as was constituted.

Our jaundiced view often fails to see this whole picture. The “divisive culture of sneaky, backstabbing and framing of innocent people” is, indeed, a Kenyan, not just Judiciary, culture. Tell me that this culture only thrived under Dr Mutunga at the Judiciary and I will show you other institutions and individuals in private and public organisations who have perfected this culture and used it when they occupied less visible positions. Our life is defined by a complete hatred for highly skilled, self-respecting people. It is marked by a celebration of rudeness, impatience, intolerance, and impudence?

If we hope to change things and get a better deal as Kenyans, we should avoid only seeing impudence in institutions led by those we think do not conform to our bigoted aspirations. Let us demand this from all institutions. The expectation that the Judiciary must be different when every other institution involved in the delivery of justice is rotten is simply unrealistic.

Godwin Murunga is a senior research fellow at the Institute for Development Studies at the University of Nairobi.