Taking JSC out of Judiciary will bolster judicial autonomy

I recently opined on changes that I believe Kenya needs at the Judicial Service Commission and the judiciary to buttress the rule of law. I was inundated with frothy commentary on social media and the press. I had touched a nerve. Some comments were outlandish – the droppings of the “nattering nabobs of negativism”. But the vast majority were informed and engaging. It’s to the latter I write this second stanza.

First, I’ll address Executive Order No 1 of 2020 – neither it, nor other arms of the state, can direct, instruct, restructure, or in any way interfere with the judiciary, the JSC, or constitutional commissions. It can reorganise the executive, but it can’t touch the judiciary. That’s Constitutional Law 101.

I single out a few commenters – most of them respected lawyers and public intellectuals – as the objects of my responses. Senior Counsel Ahmednasir Abdullahi came out of the gate guns blazing. In his inimitable way, the indomitable Ahmednasir said I had written about something of which I knew “zero”. Well, I’ve only spent close to three decades in law school teaching and writing about the rule of law and the democratic institutions that safeguard constitutionalism. His bravado – braggadocio – aside, Mr Ahmednasir should read my work and sit in my classes. The acerbic lawyer offered nary a specific thoughtful scintilla to back up his rant. I unnerved him because he was an architect of the traditions of the current JSC.

Constitutional litigator Waikwa Wanyoike – a lawyer with a good mind and moral compass – was uncharacteristically shrill. He alleged that my proposals were a one-way ticket for delivering the judiciary to the executive’s guillotine. Shouting that I “was way off”, he argued, correctly, that neither the executive nor the legislature could be trusted to guard judicial independence. I agree. That’s why the legal and constitutional guardrails I propose – giving the judiciary near foolproof control of its own budget, severing the JSC from the judiciary and protecting the security of tenure of judges through ironclad but accountable processes – are unarguable. I agree with him that elites in the executive and legislature are corrupt. So are many – very many – judges and magistrates.

LSK chair and prominent lawyer Nelson Havi was a little kind. He credited my proposals as well-meaning, but then shot them down, arguing that they would never work in Kenya. Like Mr Wanyoike, Mr Havi seemed to say that our ethics and moral standards are near zero. That’s why the rule of law is a myth in Kenya. I don’t disagree. But to quote former US Defence Secretary Donald Rumsfeld, you work with what you’ve got, not what you wish you had. You can’t wave a magic wand and manufacture a new Kenyan elite overnight. Social transformation doesn’t work that way. Nor should we be so paranoid of the elite, like Mr Wanyoike, that we see horned demons everywhere.

Dr Mercy Mwarah Deche, the erudite but plain-spoken law scholar and JSC commissioner, was engaging but ticked off I had questioned the integrity of the JSC and judges. I feel her, as they say in American slang. She’s an insider who’s always done her best. But that’s beside the point. Her best argument, with which I agree wholeheartedly, is that the AG, the presidential nominees and the nominee of the Public Service Commission are a blight on the JSC and compromise its independence from the legislature and the executive. Those members are an impermissible abrogation of democracy’s cardinal tenet of separation of powers. They must go. It’s also judicial self-dealing for the CJ and CRJ to sit on the JSC.

Writer Kwamchetsi Makokha, one of Kenya’s intriguing public intellectuals, made the most reasoned arguments of the bunch. He wasn’t defensive. His argument that we may need to fully democratise the JSC was most captivating. Why not elect all JSC members? This is inviting but it’s also playing Russian roulette. Elections in Kenya often produce corrupt demagogues. But democratic theory holds that you conduct “free and fair” elections and live with the results. There’s merit to this argument. Mr Makokha, like Dr Deche, argues that appointees of the executive shouldn’t be on the JSC. Methinks an open-meetings law would be good for the JSC and other constitutional bodies. Let’s sanitise them by requiring that they conduct business in public.

Finally, opacity is a problem for the JSC. The institution isn’t transparent at all. This violates the cardinal rule that justice must not only be done, but be seen to be done. Lawyer Pater Wanyama expressed strong views on transparency at the JSC.

I concur. In the recruitment of judges after public interviews, JSC members must make public and explain their grading of candidates. Dr Deche was dialogic and in agreement here.

Fundamentally, I believe taking the JSC out of the judiciary – and removing the CJ, DCJ, and CRJ from it – will shield the judiciary from the murk of politics in the recruitment and hearing of complaints against judges. It will enhance judicial independence.

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