First five among equals for Supreme Court

When the Judicial Service Commission (JSC) selected 25 of Kenya’s best minds for possible hiring as Supreme Court judges, its job was cut out.

That was the easier part. The commission now has to pick only five, through gruelling public interviews that ended on Tuesday.

According to Prof Christine Mango, the commission has seven days to deliberate and pick the best five, but she hinted that the final nominees may be known as early as today or tomorrow.

The interviews were a painstaking process given that the Supreme Court had attracted some of the best law scholars, high-ranking judges and human rights activists, who were then thrust in the limelight, revealing aspects of their lives and opinion that majority in the public would not have known.

Njoki Ndung’u, architect of the Sexual Offences Act and former member of the Committee of Experts, was one of 22 candidates who were eventually interviewed.

Sexual harassment

Apart from crafting the anti-rape law, it emerged that Ms Ndung’u was a victim of sexual harassment, while she worked at the African Union (AU).

She told the panel that she had filed a complaint of sexual harassment against her supervisor at the AU. That was not the reason she left her job as a political analyst. She left when her contract ended, she added.

The accused officer was later found culpable and warned, and later left the organisation, according to the former nominated MP.

Ms Ruth Sitati was another candidate. She holds a law degree and a masters in Theology. No, she is not a pastor; she is a judge of the High Court in Kisii. Her theological background and writings stirred curiosity from the panel.

Another candidate was Justice Philip Waki. He is known for his role in the commission that investigated the post-election violence.

He is one of the judges who, after being accused of corruption in the 2003 “radical surgery” of the Judiciary, went to court and was cleared.

“Here was a blatant injustice of peddling lies against a judge,” he told the panel, which sought to know why he opted to face a tribunal appointed to investigate judges.

“I gathered that courage, not only to defend myself before the tribunal, but also to do it in public because you never know what could happen in private.”

Mombasa High Court Judge Mohamed Ibrahim, who was detained by the Kanu regime in the struggle for multiparty politics, had to assure the panel that his past would not influence him.

Mr Ahmednasir wanted to know if his brushes with people in power during the reform struggle had ingrained in him “an anti-government syndrome.”

“In fact I am pro-government. That is why I want to be in one arm of the government,” he said.

Court of Appeal Judge Emanuel O’kubasu had a radical proposal: only lawyers with at least five years of experience be allowed to before the Supreme Court.

That would ensure quality, according to the judge, who said that many Kenyans who did not qualify to join local universities “crossed the Indian Ocean” and returned with Masters in Law.

The members of Council of Legal Education visited India and found that standards were very low there, he added.

He added that the current 46 High Court judges and 10 appellate judges were not enough, and called for urgent intervention, including the introduction of stenographers to record court hearings.

Currently, judges and magistrates listen to proceedings as they write notes on foolscaps, slowing down cases.

Prof James Odek Otieno, the University of Nairobi Law School Dean, faced questions over deteriorating quality of law graduates.

According to panellist Emily Ominde, some graduates cannot express themselves in fluent English, yet their work is supposed to be arguing out law.

The law professor, while admitting that there were such concerns, blamed double-intakes without commensurate expansion.

That, added to lack of PhD holders in law who could be hired as lectures, compromised learning, he said.

Other candidates so far interviewed are High Court judge Muga Apondi, who told the JSC that there were only three judges at the commercial division of the High Court, and Mr Wilfred Nderitu of ICJ-Kenya.

Mr Nderitu said that he was one of those who opposed the rendition of Abdulmalik Mohammed, suspected to have planned the bombing of Kikambala Hotel in 2002, to Guantanamo Bay.

Lawyer Joseph Obado, was another contestant who told the panel that his role as a member of the board of governors at Bondo Teachers College and three secondary schools in Bondo had equipped him with necessary leadership experience for the Supreme Court.

Other judges who were partially interviewed away from the media were Philip Tunoi, Erastus Githinji and Riaga Omolo, all from the Court of Appeal.