The Judicial Service Commission's interviews of the Chief Justice candidates has gotten off to a predictable rip-roaring start. As expected, the 'hard' questions were being asked by Ahmednasir Abdullahi, and in his interrogation of Nyamu and Bosire, JJ, he did not hold back. In one instance he suggested that Bosire, J, was an intellectual light-weight quite unsuited to the position of the President of the Supreme Court of Kenya. Given the kinds of questions that were highlighted by our incomparable news media, I am unable to say that the JSC disported itself honourably or effectively.
Regardless of the lofty ideas that Mr Abdullahi was peddling, it is moot whether the candidates are competent or qualified to hold the position of CJ. The fact that they were short-listed by the JSC would be proof positive that these men and women are indeed so competent and qualified and questions regarding their time in high school or university do not serve to demonstrate whether they should or should not be appointed to this high position. The interviews betray the fact that the JSC was ill-prepared for these interviews.
For instance, it was a complete waste of time to ask the Judges what qualifications they hold to qualify for this position. Perhaps, in their abrasive manner, the members of the JSC were attempting to tease out the judicial philosophies of the candidates but there is scant proof of this. Instead, it is emerging that the interviews are a long-awaited opportunity for some members of the Commission to score points against the judges interviewing before them and some, like Mr Abdullahi, have taken the opportunity to take pot-shots at their hapless victims.
What the Commission should be concentrating on is the judicial philosophy of the candidates; whether they accept that a paradigm shift occurred with the ratification of the new Constitution by the people of Kenya and what they will do, once appointed, to ensure that the gains of the Second Liberation are protected and advanced in the corridors of justice. These are not issues that can be determined by examining the academic qualifications of the candidates; they can only be determined by questioning them on issues of human rights law in the context of the Bill of Rights and asking questions that would reveal their biases, if any, regarding the knotty issues, some of which were highlighted during the referendum campaigns. Indeed, the Judiciary had taken positions on some of the 'contentious' issues, especially the question of the vetting of magistrates and judges. The views of the candidates thus far on what have become constitutional issues remain a mystery simply because the Commission failed to address them.
We have modeled certain aspects of the Second Republic on the American one and it would be instructive to examine what happens when the United States Senate considers the nominees for the US Supreme Court. The Senate Judiciary Committee is usually divided along party lines, with the Democrats generally favouring 'liberal' judicial nominees and the Republicans ,conservative' ones and the questions the members of the Committee ask of the nominees are designed such as to determine the level of the nominees' political bias. These issues usually revolve around totemic matters such as abortion, guns and judicial activism.
A glaring difference between the two systems, other than the obvious one, is on the preparation that is undertaken by the Senate Judiciary Committee before the confirmation process begins. The Committee members usually have staff that pore over the finer details of the nominees' professional lives, and sometimes their personal lives if they have had an impact on their judicial philosophy, and the results of these investigations usually determine the manner in which the confirmation process would unfold. For instance, when Justice Sonia Sotomayor sat for her confirmation hearings, the questions from the Committee were designed to address some of the judicial principles she held on to in light of some of her controversial rulings as a federal judge. The questions members of the Committee asked were designed to make a determination on whether Justice Sotomayor would be a valuable addition to the Supreme Court. Her confirmation hearing became a test of wills, and numbers, between the Democrats and Republicans in the Senate and her appointment was greeted with relief from liberals in the US.
The JSC does not seem to have been similarly prepared and their manner of interviewing reflected a problem that is bedeviling our nation. Rather than examine a person's record with a view to determining his or her suitability for the job, we seem more interested in ephemera at the expense of substance, hence the JSC's obsession with Bosire, J's 'lack of intellectual capacity'. The JSC must up its game if it is to be taken seriously in future, both by the public and candidates for judicial office. Otherwise, the effect of these interviews may be to put off potential candidates and therefore, deny the nation qualified and competent judicial officers. The effects on the Judiciary would be calamitous.
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