I have previously commented on the composition of the Supreme Court. Apart from the Chief Justice and Deputy Justice, three of the now nominated members stood out for me; Justices Ojwang’, Ibrahim and Njoki Ndung’u.
From the interview, it was obvious that the JSC was concerned about the departure of Mr M’Inoti from the Kenya Law Reform Commission (KLRC) at this critical stage of its work. Obviously, the departure of both the chair and deputy of the KLRC would be a set back to that Commission which is key to the implementation process. In my view though, Mr M’Inoti can bid his time and make the Supreme Court in not too distant future.
Justice Tunoi, currently the second most senior judge on the Court of Appeal joins the Supreme Court. In terms of precedence, under section 5 of the Supreme Court Bill, he will be the presiding judge of the Court in the absence of the Chief Justice and the Deputy Chief Justice. His 18 years judicial experience in the Court of Appeal will provide a steady hand as a majority of the court are persons without previous judicial experience. He is now 67 years old and will retire in 3 year time in accordance with Article 167 of the Constitution. He will be expected to provide some continuity between the old order and the new order.
Prof Smokin Wanjala academic pedigree is unassailable. He was the Deputy Director of the Kenya Anti Corruption Commission under Justice Ringera until his term came to an end. Given that corruption is a major issue in the country and particularly in the judiciary, his contribution to the fight against corruption in the judiciary is to be welcomed.
There will be two women on the Supreme Court. For those who do math, one third of the court is 2.3. Understandably there are those who feel that there should have been three or more women not two. Article 27 (8) obliges the state to take legislative and other measure to implement the principle that not more than two-thirds of the members of elective and appointive bodies shall be of the same gender. Article 172(2) provides that the JSC shall be guided by competitiveness and transparent processes in appointment of judicial officers and the promotion of gender equality. Unfortunately, no female High Court judges were nominated to the court. Given the obligations of the JSC, I think an explanation on this issue would be serve a useful purpose.
On the whole, I think the success of the Supreme Court will be through their collective effort as borne by their experience. There are three sitting judges, Tunoi, Ibrahim and Ojwang', who will bring to bear their judicial experience, the rest have non judicial experience. Three nominees, Mutunga, Ojwang and Wanjala, have taught at the University of Nairobi Law School. Ms Barasa teaches at the Kenyatta University. Three have doctorate degrees; Mutunga, Ojwang' and Wanjala. Ms Barasa and Justice Tunoi should be joining them soon. Ms Barasa and Ms Ndungu have been active members of FIDA. Two members come from the same ethnic group, Ms Baraza and Prof. Wanjala. Two of the nominees, Mutunga and Ibrahim, were detained during the Nyayo era. There the two muslims on the court; Mutunga and Ibrahim. Two members, Mutunga and Tunoi will be departing from the court in the next three years on account of age. No actively practicing advocate was nominated to the court. None of the judges have been magistrates.