The Supreme Court, Nairobi
Supreme Court Judges
The JSC has began interviewing the 26 candidates for the Supreme Court. In making the 5 nominations for from the 26 candidates the JSC will have to satisfy key ethnic, geographical, religious and gender constituencies. Section 14 of the First Schedule to the Judicial Service Act, 2011 provides that, “ The Commission shall, within seven days of the conclusion of interviews, deliberate and nominate the most qualified applicants taking into account gender, regional, ethnic and other diversities of the people of Kenya.” Article 27 and Article 172(2) place particular emphasis on the gender consideration.
As the apex court legal system, the Supreme Court will play an important role in the development of local jurisprudence particularly regarding the interpretation and implementation of the Constitution. More often than not it will be required to wade into controversial and political matters. Diversity in membership of the Supreme Court will therefore make people more comfortable when they see a court representative of all Kenya. Apart from this, people of diverse backgrounds will bring on board various competencies and different experiences which will give the court balance in dealing the several issues that confront the nation.
Apart from the Chief Justice and the Deputy and taking into account the shortlisted candidates, who is likely to make it to the highest court? In my earlier post, I had suggested the following; Justices Omollo and Visram, Dr Willy Mutunga, Dr Patricia Mbote, Justice Lenaola, Dr Githu Muigai, Violet Mavisi, Justice Kalpana Rawal, Florence Jaoko, Justice Martha Koome and Nzamba Kitonga. Dr Mutunga is now the nominee for the position of Chief Justice. Ms Nancy Barasa as the designated deputy is also a member of the Court. Some of the persons I suggested did not apply to be considered for nomination to the court. It is is also likely, where one candidate from a region or ethnic group is chosen, a similar candidate is automatically excluded.
Here are my five nominations;
In my view, this is an excellent candidate with all round experience as an experienced and intellectually solid advocate. His term as the Chairman of the Law Reform Commission at this pivotal time can only be a positive for the court.
Justice Mohammed Ibrahim
Currently presiding judge at the High Court Mombasa. His pedigree as an advocate, first in the firm of Waruhiu Muite in the 80s and then his own firm is undoubted as was his engagement in human rights.
Justice Jackton Boma Ojwang'
Having come from straight from academia to the High Court, I always considered the highly qualified judge ill fit for the that court. His academic credentials as a professor of constitutional law and together with judicial experience will only place him in good stead over the scholarly candidates.
Susanna Njoki Ndung'u
The 1965 born Njoki Ndung'u Susanna was previously a nominated Member of Parliament and subsequently a member of the Committee of Experts. She is known for her advocacy of gender issues. I think the court would be enriched by her political experience.
A woman of Asian origin would no doubt be attractive to the Court. Lady Justice K.H Rawal was appointed High Court judge in 2000 after a long career as an advocate spanning has 28 years experience in practice as an advocate three of which she spent as an Advocate of the High Court of India and the rest in Kenya.
What do you think?
*Prof. Ghai and Jill Cotteril make the point that the JSC should await confirmation and appointment of the new Chief Justice before proceeding with interviews as the Chief should be entitled to choose whom he want to work with.
Confirmation and Approval of the CJ, DCJ and DPP
This week has been a whirlwind of activity on the judicial reform front. Under the Constitution these Candidates must be approved by the National Assembly before formal appointment by the President. Neither Constitution nor legislation provide the parameters or factors to be considered for such approval by the National Assembly. Apart from the professional qualifications, there is the provisions of Article 166 (c) which provides that the the person appointed to the position of superior court judge must be a person of "high, moral character, integrity and impartiality." This provision applies to the position of DPP by virtue of Article 157(3). This formulation is not uncommon and is to be found in many commonwealth constitutions.
I have not found a precise definition for "high moral character." Integrity and impartiality are easier to assess on an objective basis but morality character beats definition and has a fluid subjective quality to it. According to the statement released by the Catholic Church, "The chief justice and the deputy chief justice are officers who enjoy the security of tenure once appointed. Therefore there is need to ensure that those to be appointed to these esteemed offices satisfy all constitutional criteria, including "high moral character, intergrity and impartiality". We need people with judicial philosophy that reflects natural law, the Kenyan religious and African cultural values, including our universal respects for life, our recognition of the importance of family wellbeing and our appreciation of the role of religion in public and private life." Dr Mutunga is undergoing his second divorce while Ms Barasa is now divorced. Marital status cannot be factored into the matrix of morality when marital status is outlawed a ground for discrimination under our constitution. The fact that Dr Mutunga wears an ear stud and has made some interesting observations on his religion should not be a basis for judging one's morality as even the mode of dressing and one's religious beliefs are protected by the constitution. In my view, morality should be defined with reference to the provisions of Article 10 which sets out the national values and Chapter Six of the Constitution on leadership and integrity. To do otherwise, would be to introduce discrimination and social exclusion through the back door.
On Monday, the public was given the opportunity to make presentations either in support or in opposition to the nominees. As expected, the Catholic and Evangelical churches opposed the nominees for CJ and DCJ on moral grounds. While the civil society generally supported the two judicial nominees, Professor Ghai led the assault against Mr Tobiko, the DPP. Allegations of bribery were also made against the DPP by a former PS.
On Tuesday, the nominees appeared before the CIOC Committee of Parliament for questioning. Both Dr Mutunga explicity denied allegations that they were gay while Ms Barasa gave a robust defence of her PhD dissertation on the rights of sexual minorities. Mr Tobiko spent a better part of his testimony defending himself against accusations of incompetence and corruption.
On Wednesday, the DPP was recalled to clarify some issues that had arisen from his testimony. The Attorney General defended Mr Keriako's record while P L O Lumumba and the former DPP, Mr Philip Murgor also testified. At the request of the Committee, the Speaker ordered that the Report of the CIOC be tabled before the House on Tuesday next for approval.
On Thursday, the CIOC approved all the nominees. The Committee was closely divided in respect of the DPP.
Notwithstanding the allegations levied against the DPP, the approval process is not only a legal but a political process. Once the principals had decided that this is their nominee unless something major is discovered, he will be approved. Unfortunately, the seeds of doubt have been sown and they will continue to haunt that office everyday.
For Kenyans, this week was a great learning week about the intersection between law and morality, much better I must say than the lesson I got in first year of law school referencing the Wolfenden Report.
Supreme Court Bill, 2011
The Supreme Court Bill, 2011 passed the National Assembly without amendment. Its now on the way to the President's desk.