Interviews for the next Chief Justice commenced on August 29 with Justice Alnashir Visram. The Judicial Service Commission (JSC) interviewed 12 candidates, the last candidate being Justice Jackton Ojwang. The first and last interviewees will be most remembered for excellence in tackling issues.
The interview process that has been a rigorous and informative exercise, leaving both the consumers of justice law, litigants and the public educated on the ideal qualities of a Chief Justice.
What Kenyans and the JSC should be looking for in a Chief Justice is neither complex nor novel.
The Chief Justice is Head of the Judiciary as well as the Chairperson of JSC and the President of Supreme Court. He is also the link between the Judiciary and two other arms of the Government — the Executive and the Legislature.
A Chief Justice must be man or woman with high moral character, integrity and impartiality. These are the basic constitutional requirements.
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Moral character is a by nature subjective in its description and standards.
Suffice it to say that for a Chief Justice to publicly advocate on matters and issues that contradict the national values and principles of the Kenyan people would be offensive to the national moral character of the nation. Personal morality is also central, hence any weaknesses would do not meet the moral character test.
However, a pertinent question is what happens when one is already compromised and has a known history of debauchery and financial impropriety? It leaves one open to blackmail and ultimately under the control of vested interests.
A Chief Justice is the head of the temple of justice and for this alone the position calls for a person who must have a consistent history of honesty and high moral character.
To ensure that the wheels of justice do not come to a halt, the CJ must have the utmost respect for professional calling governed by the codes of professional and judicial conduct.
However, we must remember that none of us are without blemish, and any controversy that has a logical, sensible and reasonable explanation should never lock an aspirant out.
Against this backdrop what is the yardstick? Key is impartiality, whose attributes can be tested on several fronts, such as fairness, demonstrated by neutrality in the delivery of just decisions.
A Chief Justice must be open-minded and proficient in deciding on issues in accordance with the law. Good judgment, general public knowledge, common sense and sound balance of mind are ingredients of practical and prompt decisions.
Intellectual capacity, legal judgment, diligence, legal know-how as opposed to know- who, organisational and administrative skills as well as ability to work with a variety of people will demonstrate professional competence.
There has been a mixed public reaction on whether the interviews for Chief Justice should have been in public. It has been felt that the exercise was humiliating, with candidates demonstrating ignorance on basic legal principles.
For sitting judges, such embarrassment could demean them before advocates and litigants. Public confidence in the judges’ ability to serve could dwindle. On the other hand, the real character, competence and incompetence of some of the candidates played out in the open.
The law requires that the interviews be in public. Publicity is the hallmark of judicial fidelity. Publicity underscores the vesting of judicial authority in the people. The people are therefore, rightfully entitled to see how their Chief Justice is recruited.
It is only through public recruitment that the Kenyans understand who has a mastery of the Constitution, the procedure for a Presidential Election Petition and general public knowledge
The public have seen for themselves which candidate will put the Constitution first and not their personal beliefs. However, it is a contradiction in terms that the Chief Justice’s private and public beliefs must be embodied in one person not two or three people. Such is the nature of public duty.
The Constitution being unambiguous in that all sovereign power belongs to the people of Kenya, it is worrying when one sees the interest groups at play in the recruitment of Chief Justice.
Indeed the lobbying commenced on announcement of the vacancy. It is evident now that the real contenders for Chief Justice are five. These include Senior Counsel Nzamba Kitonga and Supreme Court Judge Smokin Wanjala who demonstrated profound knowledge in law and accumulated years of civil society service.
Either of them would continue the legacy of retired Chief Justice Willy Mutunga if appointed Chief Justice. They have many things in common, having been in the trenches of the civil society’s struggle for change.
Court of Appeal Judges David Maraga, Alnashir Visram and Supreme Court Judge Jackton Ojwang, on the other hand, are the three candidates who could deliver the Judiciary to a different level beyond the perceived normalcy that punctuated Mutunga’s legacy.
The three have vast experience on the bench and in the bar. Their contribution to community service outside legal matters was apparent.
Vishram demonstrated his knowledge of the cartels that undermine the administration of justice. Maraga came across as an accomplished legal and religious elder, with unwavering commitment to his belief and the need to be just. Ojwang demonstrated exemplary know-how of the law and public administration. His immense contribution to the learning and application of the law was evident.
These three judges are seasoned hands in public administration. Most important, they are not beholden to anyone and Vishram together with Ojwang stated publicly, their commitment to dismantling the cartels that former the Chief Justice publicly acknowledged existed in the Judiciary.
As we reflect let us be alive to the statutory requirements on the appointment of the Chief Justice. The nomination must be done within seven days from the date of conclusion of interviews being September 15.
All eyes are now on JSC to deliver a Chief Justice suitable and acceptable to all Kenyans. The JSC has seven days to be exact!
