JSC was wrong to vet applicants for registrar post in camera

There is general consensus that the pre-2010 Judiciary in Kenya was characterised by impunity, emasculation by the Executive and endemic corruption that had resulted in total loss of faith by the public. It is for this reasons that a number of safeguards were put in place in the 2010 constitution.

The recent process for the appointment of the Chief Registrar of the Judiciary has sparked concerns about transparency and fairness. In the past, the appointment of public officials without public participation was common practice. However, this approach is no longer acceptable in today’s Kenya.

While there may not be a specific legal requirement for the Judicial Service Commission (JSC) to conduct the interviews in public, it has become a widely accepted practice across all branches of government.

The importance of public scrutiny in such appointments cannot be overstated, especially considering the significance of the Chief Registrar's role.

The rules on recruiting judges is set out in the Third Schedule to the Judicial Service Commission Act. The schedule is very prescriptive in terms of activities and also timelines. This makes the recruiting of judges one of the most rigorous, open, and participatory.

The decision to conduct interviews for seven candidates in a single day, with the final candidate interviewed late into the night, raises serious questions about the fairness and thoroughness of the process.

It is widely recognised that interviewing candidates under such conditions can significantly impair the process. Factors such as fatigue, time constraints, biases, and uneven attention across candidates interviewed throughout the day can all contribute to a less than ideal assessment process, casting doubt on the outcomes.

Moreover, the lack of public disclosure regarding the interview process goes against the principles of openness and transparency enshrined in Article 10 of the constitution. The public has a right to know how such crucial appointments are made and to have confidence in the selection process.

The JSC, as a constitutional body entrusted with safeguarding the independence and integrity of the Judiciary, should adhere to the highest standards of transparency and accountability. By conducting interviews behind closed doors and rushing through the process, the commission risks undermining public trust in the Judiciary and its ability to uphold the rule of law.

Moving forward, it is imperative that the JSC revisits its appointment procedures and ensures that future interviews for key positions are conducted openly and transparently. This will not only enhance public confidence in the Judiciary, but also uphold the principles of good governance and accountability as outlined in the constitution.

- Mburu is a lawyer and a programme officer at ICJ Kenya