The Judicial Service Commission (JSC) is at it again, this time overlooking sitting judges for the positions on the Supreme Court and instead, packing their short-list with candidates from the private sector. At least that is how some conservative members of the Bench feel, what now with the nominees for the CJ and DCJ jobs being 'outsiders' and experienced senior judges, once again, getting the short end of the stick. Of the 26 short-listed candidates, only five are destined to be appointed to the Supreme Court, and if successfully completed, this will bring to a close the first trying phase in the reform of the Judiciary. The Supreme Court, other than intervening in disputes involving presidential elections, is set to become either the defender or the betrayer of the Bill of Rights.
It is this context that must continually inform the choices that the JSC continue to make in the constitution of the Supreme Court. It is good that the Judiciary does have experienced senior judges, and no one would gainsay the fact that their experiences will continue to be of great and critical importance to the Chief Justice as he embarks on what is surely to be a trying 6 years (if the good Dr Mutunga is indeed confirmed by the National Assembly). However, simply because they are senior judges and simply because they are experienced does not mean that they must be appointed to the Supreme Court or, as the JSC demonstrated earlier, as the Chief justice or Deputy Chief Justice.
One of the reasons why Kenyans do not have any faith in the Judiciary, regardless of the true situation in the corridors of justice, is the perception that judges and magistrates, especially senior and experienced ones, were senior and gained experience simply because they were lackeys of the Executive branch, especially during the much-maligned rule of President Daniel Toroitich Arap Moi. The situation has not been helped with advocates, including some very vocal members of the Judicial Service Commission, telling all and sundry that the Judiciary is rotten to the core and that the nation would be best advised to rid itself of a judicial class that has caused more problems than even the perfidious and avaricious political class. If the key actors in the administration of justice, that is the Bar and the Bench, do not have a positive word to mention about the other, there is no way that public confidence in either institution would be high. As a result, it is presumed, rightly or wrongly, that the senior and experienced judges, despite no adverse mention of their names, are not the right persons to head the Judiciary or sit in the Supreme Court. It is in this context that the rejection of Samuel Bosire, Riaga Omolo, Alnashir Vishram, Joseph Nyamu, Hannah Okwengu, Mary Ang'awa and Kalpana Rawal for the positions of Chief Justice and Deputy Justice is to be seen. It si also why the choice of Dr Mutunga and Ms Barasa as CJ and DCJ was inspired - their lack of ties to the Establishment may stand them in good stead as opposed to the perceived advantage of being senior or experienced.
But, we must remain vigilant. There are many conservative members of the profession in private practice who would or could have the opportunity to affect the manner in which the Bill of Rights is protected and promoted. If they manage to infiltrate the Supreme Court or, indeed, the superior courts, there could be a derogation from the Bill of Rights to such an extent that individual liberties would exist only on paper while in practice, the Executive would continue to ride rough-shod over an uninformed public. It is not just the independence of the Judiciary that is critical, the members of the Judiciary must have independent minds and must dispassionately apply the law with a view to protecting the marginalised and the vulnerable.
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