The next Chief Justice must not owe favours to cartels

The applications for the position of Chief Justice were submitted a while back.

Now, all that Kenya needs to hold the reins of its Judiciary is a leader. A man or woman of integrity, who inspires trust and confidence inside and outside the Judiciary.

Is Kenya asking for too much?

Maybe, yes. Maybe the demands of leadership, particularly the obligations and responsibilities, are too much to be borne by a single individual.

Maybe the Judiciary is already condemned by the general public to the bin of no recovery.

Maybe there is such strong inertia in the Judiciary that a servant leader would make no difference without the necessary cooperation of the basic elements. That may be so.

But I bet it is worth a try – and we have a perfect opportunity to test it this time round.

The outgoing Chief Justice has much to his credit. In general terms, there is a culture of more openness in the Judiciary compared with previous regimes.

The survival, with its plus and minuses, of the Constitution has been possible thanks to the general support by the Judiciary. It has stood the test of the trying six years since its promulgation.

CELEBRATE GAINS

The Judiciary has achieved gains to be proud of. Change of attire, more judges, new or renovated court buildings, better salaries and benefits. Certainly, an air of transparency permeated the Judiciary in the last five years.

There have also been rocky times, challenges, bad mistakes and inner fights that could have been tactfully avoided.

One of the criticisms against the Judiciary is the insidious corruption that dogs the dispensation of justice. The perception of a culture of impunity is a disaster for an institution that relies heavily on the confidence of the masses.

The rule of law, a significant factor in the socioeconomic development of any society, is guarded by judicial institutions, and unless the Judiciary functions properly, businesses will stagnate. Land disputes will not be solved effectively, which ties up this factor of production.

A stable system of administering justice means citizens feel more secure to invest in the economy without fear of abrupt upheavals. At the very least, they are assured of an appropriate forum for addressing their concerns.

A stable Judiciary is the key to unlocking the full potential of our country, for we are sitting on a goldmine. However, there will never be a stable Judiciary without a virtuous Chief Justice.

It would be absurd to choose a Chief Justice who will bow before the Executive or any other political entity, or one who owes favours to cartels.

CULTURE OF INDEPENDENCE

A subservient judiciary and a politically aligned Chief Justice has always been the dream of every Executive across the world. Just a year after independence, Kenya too was unable to resist it.

The second amendment to the independence Constitution of Kenya, which was passed in December 1964, marked the beginning of the destruction of majimboism.

It also gave President Jomo Kenyatta, in practical terms, the power to appoint the Chief Justice without consulting the regions.

The President was also at liberty to make judicial appointments without consulting the Judicial Service Commission and to initiate an investigation into the conduct of a judge for purposes of removing that judge.

Once the Judiciary bends its knee before the Executive or any other government body, Lady Justice drops her scales and her blindfold and loses objectivity and the capacity to judge.

She will declare anyone who offers wealth, fame or power the winner.

There is no single person better positioned than the incoming Chief Justice to inspire and inculcate a culture of independence, transparency and integrity in our judicial arm.

AIMING HIGHER

The new Chief Justice’s actions will either improve, worsen or retain the current Judiciary scorecard.

To retain the perfect score, he or she needs to lead the Judiciary to higher levels of openness, accessibility and integrity.

Judicial officers must perceive in the Chief Justice an unwavering man or woman of principle, whose example they can emulate.

He or she must be an efficient administrator, an inspirational leader, magnanimous and humble, as well as prudent and courageous at the same time.

He or she must be a person of integrity, not only at the time of vetting, but also throughout his or her tenure. He or she must understand the old guard at the Judiciary but be open to the ideas of the young Turks.

Let the person who takes up judicial leadership be an inspiration rather than a passive receptacle of ridicule.

That will be a sure step towards changing the culture of impunity, which pervades our society almost hopelessly, towards a culture of integrity that can assure inclusive and stable prosperity.

Dr Franceschi is the dean of Strathmore Law School. [email protected], Twitter: @lgfranceschi