MUTUA: Take JSC out of judiciary to free courts from Kanu-era intrusion

A debate is raging in Kenya about the nature, purpose and composition of the Judicial Service Commission (JSC).

To say the JSC is in the crosshairs of Kenyans is quite the understatement. That’s because under the 2010 Constitution, Kenya’s courts were completely transformed and – at least on paper – became a co-equal arm of the state.

But there are still a number of gargantuan problems that bedevil the judiciary and need resolution. However, any change in the JSC must – and this is non-negotiable – enhance the independence of the Judiciary. 

It must protect the judiciary from executive intrusion and stop the legislature from suffocating the judiciary. But crucially, the JSC cannot be a safe haven for judicial self-dealing and misconduct.

Let’s gaze back at the Moi-Kanu era to realise how far we’ve come. Back then, the President held the professional, and often personal, lives of judges in his mortal hands.

The judiciary was a department within the executive. Mr Moi preferred some of his judges foreign, often appointed on contracts not worth the name.

REFORMS

The story is told of many a local judge summoned before Mr Moi and confronted with secretly filmed footage of His Lordship taking a bribe, or in a compromising position.

Mr Moi would ruefully inquire of the judge, “Mambo gani hii?” [what the heck is this?]. The poor judge – “Hizzoner” – would henceforth rule as instructed by State House. The security of tenure for judges was a joke. 

The 2010 Constitution didn’t completely usher in judicial nirvana. Although the new-look JSC was miles apart from the Moi-era counterpart, cultural and normative habits die hard. Under Mr Moi, the JSC was a spineless rubberstamp.

In the post-2010 constitutional order, it’s an independent organ, although it hasn’t always acted independently. In 2013, the Supreme Court upheld the presidential vote to a hue of public opprobrium.

The Kenyan street ran awash with rumours of judicial corruption and executive intimidation, if not capture. We may never know the truth.

In 2017, in a first for Africa, the Supreme Court nullified a presidential election. Jubilee’s Uhuru Kenyatta promised to “revisit” the matter. Since then, the judiciary has been slowly throttled.

ETHICAL CULTURES

Which begs the question – how do we reform the JSC to preserve what’s good and jettison what’s not? Let’s state the bottom line upfront. There’s no magic bullet, or perfect blueprint.

Laws and institutions are only as good as the political and ethical cultures on which they stand. The IEBC, despite sturdy legally sound guardrails, has miserably failed to deliver a credible election.

Its members have largely been captured by factions of the political elite. So let’s look at the practice in several common law jurisdictions to see where we can do better. The United States doesn’t have a JSC as such.

Federal judges are nominated by the executive and vetted – approved, or rejected – by the US Congress. The US Chief Justice isn’t involved in the appointment of judges.

He’s, however, the head of the Judicial Conference, which alone administers the courts. The removal of judges is the province of Congress, which alone can impeach for misconduct. 

In the United Kingdom, the Judicial Appointments Commission is a non-departmental independent body by law headed by a lay person. Neither the Lord Chancellor, nor the Lord Chief Justice, sit on the JAC. 

APPOINTMENT

In India, a JSC-type commission was rejected in favour of the “collegium system” in which judges headed by the chief judge of the collegium (a judicial district) recommend to the Chief Justice of India judges to be appointed. His decision is final.

In South Africa, the Chief Justice presides over the JSC, which is composed of judges and a widely representative swath of society. The JSC publicly interviews candidates and sends a list to the President, who formally appoints.

The South African JSC has worked better than Kenya’s, primarily because of the country’s more advanced democratic culture and ethics. Laws don’t fully eliminate human greed.

But young democracies like Kenya’s must remove all temptations to corruption. Reforms must include enforceable limits on executive overreach, on the one hand, and curbs on impunity and self-dealing within the judiciary, on the other. 

The JSC needn’t be an in-house organ chaired by the CJ. Just like the Speaker needn’t chair the Parliamentary Service Commission.

NARROW MANDATE

Let’s take the JSC out of the judiciary and make it an independent body with a narrow mandate – only interviewing judicial candidates and hearing petitions against judges.

It would make referrals for impeachment to the legislature. The administration of the courts, including crafting the judiciary’s budget, must be solely left to a new independent constitutional organ chaired by the CJ.

The judiciary’s budget would automatically be passed unless two-thirds of both Houses amend it. 

The tenure of judges would be sacrosanct and removal of judges would be through impeachment by two-thirds of both houses, or upon conviction by a court for defined criminal and civil offences.

The President would be impeachable for the wilful failure to obey court orders.

Makau Mutua is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC. @makaumutua.