The Judiciary Service Commission is oddly obsessed with the question of corruption in the Judiciary, insisting time and again that the candidates for the offices of Chief Justice and Deputy Chief Justice (as President and Deputy President of the Supreme Court) will be solely responsible for reforming the Judiciary and eradicating corruption from the hallowed halls of justice. The truth, as always, is more nuanced. If the job of reforming the Judiciary fell on the shoulders of the CJ and DCJ, then we can start counting the many missteps in the process right now.
The job of the CJ and DCJ is administrative; the policy aspects of their role in the Judiciary will be to ensure that the Judiciary functions effectively and efficiently. Of course they have a role to play in fighting corruption, but it is not their primary function, nor even a critical part of their job description. Art 166.3 lays down the qualifications for appointment as CJ and none requires him to have been at the forefront in the fight against corruption. What is required of a candidate is 15 years as a superior court judge or 15 years as a distinguished academic, judicial officer, legal practitioner or such other experience in other relevant legal field. However one chooses to interpret these qualifications, they do not include an affirmation that the candidate was a key player in the fight against corruption, whether in the Judiciary or elsewhere. Of course, it is imperative that the candidate have no connection to corruption or corrupt acts.
What the interviews reveal, and from the statements made by the candidates under consideration, is that they have not actively participated in activities that were crucial in the fight against corruption. Dr Willie Mutunga may have written about this problem, but there is no proof that he has done anything to actively contribute to this fight. Therefore, insisting that the candidates possess solid anti-corruption credentials is irrelevant and misses the role that the CJ and DCJ will play in the administration of justice in Kenya.
It is in their administration of the Judiciary that the CJ and the DCJ will be judged. We already have multiple institutions charged with the duty of fighting corruption: the Kenya Anti-Corruption Commission and the Office of the Director of Public Prosecutions come to mind. It is their duty to fashion strategies, tactics and procedures for the fight against corruption. The job of the CJ and the DCJ will be to implement these strategies to ensure that Kenyans who seek justice in our courts are not short-changed. Therefore, the candidates must demonstrate that not only are they competent managers of the machinery of justice, but that they are willing to implement policies and strategies formulated by others in ensuring that "justice for all" is not just a slogan but a defining principle for the Judiciary. Insisting that they come up with strategies for a function that has already been assigned to another agency or institution is to misjudge the place of the Chief Justice in the fight against corruption. It is time that the JSC in determining who is the best candidate jettisoned this pipe-dream and instead focused on what makes a good Chief Justice.
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