It must be mentioned: public displays of integrity are very unreliable indicators of Christian, or any other sort, of values. The history of man is replete with tales of sheep in wolves' clothing, pretenders who hid their true nature until they achieved what they wanted before revealing their true selves. In Africa, living saints like Nelson Mandela are the exception that prove the rule. When he voluntarily stepped down as president after one term, he set the tone for all the other African presidents. They all found it difficult to follow his lead: President Moi may have left peacefully, but it was by no means voluntarily. Uganda's Yoweri Museveni managed to persuade his parliament to amend the constitution to remove the term limits that he himself had negotiated into the document in the first place. Tunisia's Ben Ali and Egypt's Mubarak were violently removed from office, kicking and screaming.
All of them came to power, having made certain promises that were quickly forgotten once the trappings of power became addictive. It is not possible to determine whether the public face of an individual accurately demonstrates his morality or his acceptance of certain societal norms. Therefore, it is entirely possible that the Church leaders are correct that Willy Mutunga and Nancy Barasa, because of their complicated personal lives, may be entirely unsuited to hold the positions of the Chief Justice or Deputy Chief Justice. On the other hand, their complicated personal lives may instead, give them the breadth of experience and empathy with the messiness of everyday life to allow them to make truly judicious rulings on matters that may come to the Supreme Court for determination. It is a principle of law that where two scenarios are possible, the one that favours the accused is the one to be adopt by the Courts. In this instance, the benefit of doubt, absent concrete evidence of Dr Mutunga's unsuitability, or indeed, Nancy Barasa's, must lie with the candidates.
This is not to say that we must allow them a free hand in the manner in which they shall helm the Supreme Court. Anyone who wishes to see the positive development of law, or the defense of deeply-held values system, must participate in the next phase of judicial development, that is, one must take a keen interest in the quality of the judges who will be appointed by the Judicial Service Commission to the Court of Appeals and the High Court of Kenya. The representative of the faith-based organisations who resigned his seat on the JSC denied the Church a voice in the selection of the next Chief Justice and Deputy Chief Justice. Why the church leaders did not move with speed to replace him with another one of their nominees remains a mystery, but it is not too much to speculate that had they done so, they would have had a say in the choice of the next CJ and DCJ, and if their views had been ignored, they would have had valid reasons for rejecting the choices made. In the USA there is a saying that aptly captures the church's dilemma: decisions are made by those who show up. They did not show up and so their position of opposition is weakened by their absence.
At this stage in the process of implementing the Constitution, it is imperative that the Supreme Court is established. Its role in the interpretation of the Constitution is being usurped by unqualified and incompetent institutions, such as the Commission for the Implementation of the Constitution and the Constitution Implementation Oversight Committee. The process of confirming the CJ and DCJ and appointing the Judges of the Supreme Court must be done quickly and professionally. The delay in the establishment of the Supreme Court is allowing the main opponents of the Constitution adequate time to ensure that there are enough bottlenecks and stumbling blocks in the public sector, that the Court will spend the first few years of its existence simply trying to undo what has been done.
In this context, the red herring that is the question of the nominees' values system must be ignored, and instead, focus must shift to the the more crucial question of who will sit in the SC, the Court of Appeal and the High Court, in order to ensure that the hard-won rights of individuals are protected from those that would seek to undermine them.
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