Outsiders nominated to be Kenya's next Chief Justice and Deputy Chief Justice

Kenyan presidents since the country secured independence in 1963 from Britain have never had qualms about infringing on the principle of separation of powers or gone to such lengths to protect the independence of the country’s judiciary nor have they tried to protect the independence of the country’s judiciary.  And this was top in the minds of the seven members of the judicial service commission (JSC) that interviewed candidates for the posts of chief justice and deputy chief justice over eight days that ended May 12.

The post became vacant when a constitution passed in last year’s referendum required the incumbent to leave his post in February. Kenya’s new chief justice will enjoy more independence under new the constitution. The chief justice will also head the country’s first supreme court, which among other things will be responsible for ruling on presidential election petitions.

It is also significant that the Kenyan government has cited its constitutionally-pegged program to reform the country’s judiciary as one of the reasons supporting its challenge to the International Criminal Court (ICC) proceedings against six of its citizens.

The JSC on Friday finally settled on Willy Munywoki Mutunga, a human rights activist and scholar, as its nominee to be Kenya’s next chief justice. It also nominated Nancy Makokha Baraza, a women’s rights activist, to be the country’s first deputy chief justice.

For eight days between May 3 and May 12, the commission treated the country to the unprecedented sight of open interviews of candidates for the country’s top two judicial positions. Serving judges applied for the posts as did lawyers in other public institutions, private practice, and the nongovernmental world. The interviews went beyond the usual courtroom practice of having journalists taking notes for their outlets. TV cameras were allowed in. One channel, Citizen TV, interrupted its regular programming to air live coverage of all the interviews.

Ordinary Kenyans got to hear terms like stare decisis, Latin for the legal principle that judges are required to follow precedents made in earlier judicial decisions. Many candidates were asked their opinion on this and other legal principles. The public was also given a peek into the inner workings of the judiciary, an institution that has been accused of being both aloof from the public, as well as steeped in corruption and incompetence.

There were stranger-than-fiction stories of corruption. One high court judge told of how she learned of a butcher in Kenya’s coastal town of Mombasa who went every morning to visit a magistrate with loads of meat and parking tickets. The butcher usually left the court premises without the meat or parking tickets. Another high court judge talked of missing files in court registries but was not aware of corruption among judges, only acknowledging there were rumours of high level corruption in Kenya’s courts.

The candidates were challenged to demonstrate how they would tackle corruption and incompetence in the judiciary, which has seen a backlog more than 800,000 cases develop. They were also challenged on their qualifications, judgments, academic papers, and understanding of the new constitution. They were required to elaborate how they would exercise their independence, especially the judges who have served for decades or issued judgments that are perceived to have favored presidents, cabinet ministers, and other powerful people.

The tone of questioning ranged from the genteel to that of an aggressive prosecutor. Confronted with this many candidates were defensive; some bristled, coming close to losing their temper. Only a few confidently faced all questions with cool heads. The responses ranged from the general and vague – such as saying corruption may be a problem – to emphatic descriptions of the judiciary as an institution in crisis.

Ultimately, the commission opted for two “outsider” candidates who have no experience as judges. But Mutunga and Baraza together would bring decades of experience working as university law lecturers, as public officials, and as private practitioners, and their records of agitating for wide-ranging constitutional change in Kenya.

The nominations have been forwarded to President Mwai Kibaki and Prime Minister Raila Odinga for endorsement. If the two leaders approve the choices, they are required to forward the names to the national assembly for further vetting.

It is possible that the nominations will be challenged. The parliamentary committee that is responsible for vetting the nominees is currently embroiled in a tug-of-war over who leads it. Members of parliament allied to ICC suspects Uhuru Kenyatta and William Ruto have been opposed to the current chairman, Ababu Namwamba, since February, after a controversy over earlier nominations for the post of chief justice, director of public prosecutions and attorney general. Those nominations collapsed in February, leading to a fresh process that concluded on Friday.

But even assuming that the nominations for chief justice and deputy chief justice go ahead, Kenya’s criminal justice system will still be far from reformed to the extent envisaged in the government’s admissibility challenge to the ICC.

The supreme court proposed in the constitution is yet to be formed. The judicial service commission did say on Friday it has shortlisted more than 20 candidates for the supreme court. But a bill to elaborate the constitutional provisions on the supreme court has only just gone through the drafting stage, and still needs to be taken to the legislature. Also still pending is the vetting of serving judges, as required under the new constitution, to weed those implicated in corruption or incompetent. And a credible director of the independent prosecutor’s office is yet to be nominated, let alone vetted by the national assembly.

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