Apparently, Justice (Rtd) Aaron Ringera is contemplating suing the Judiciary Service Commission for not placing him in the short-list of candidates for position of Judge of the Supreme Court of Kenya, accusing the Commission of having violated his constitutional right to fair administrative action under Article 47 of the Constitution. Kenneth Mwige, another candidate who was not short-listed, has also accused the JSC of failing to abide by the principles of the Constitution in denying him a place on the short-list and also of failing to inform him of the the reasons why he was not short-listed. It is difficult to argue against the claims of these two eminent practitioners of law. However, I doubt whether their complaints would reverse the minds of the members of the JSC regarding their suitability to sit in the Supreme Court.
The JSC erred in not publishing the criteria it relied on in determining who would make the list and who would not. It erred in not publishing their reasons for and against the successful and unsuccessful candidates. However, I do not think that they were acting unconstitutionally, as the principle of public participation has not been legislated or interpreted yet by the Court of Appeal (sitting as the Supreme Court) or the High Court of Kenya. Some of the phrases appearing in the Constitution of Kenya are extremely vague, giving rise to these sorts of contentious accusations. For instance, "high moral character" in the context of determining the suitability of nominees for the positions of CJ and DCJ have given rise to arguments that the JSC considered 'alien' factors in short-listing Willy Mutunga and Nancy Baraza to the two positions respectively. So too the phrase "public participation" in using unspecified, unpublished criteria in not short-listing Aaron Ringera and Kenneth Mwiga to the position of Judge of the Supreme Court.
The proper avenue for resolving the ambiguities of these phrases lies in making applications to the High Court of Kenya for the proper interpretation of these phrases. Many institutions have applied to the Attorney-General for his opinion regarding these issues. However, the applicants have denounced the A-G's interpretations on grounds that they have been 'politicised' when they have not met their purposes. It is this claim that has been made regarding the A-G's opinion on the legality of the Minister for Finance's intention to read the Budget on June 8 without complying fully with the provisions of Art 221.
Justice Ringera was at the helm of the Kenya Anti-Corruption Commission when the Anglo-Leasing scandal came to light. His handling of the matter gave rise to doubts about his desire to fight corruption and impunity at the highest levels of government. Indeed, he was indicted by no less than the Permanent Secretary in the Office of the President for Integrity and Governance for the manner in which he refused to call the main perpetrators of the scandal to account and the selective application of law to prevent their prosecution or investigation. Further, the manner in which his re-appointment was conducted, and his refusal to step down in response to the calls of members of civil society, raised doubts about his understanding of the perception of his refusal. Finally, his past actions as a member of the Law Society of Kenya during the Second Liberation movement raised doubts about his desire to hold the government to account for its autocratic tendencies. Whether the JSC published its reasons for refusing to short-list the retired judge or not, it would have been unusual for them to even contemplate his appointment to the Supreme Court; too many doubts surrounded his past actions.
Mr Mwige claims that as a member of the Law Society, he has a right to be informed of the reasons why he was also not short-listed. He is right and the JSC must move with haste to do so. However, appointment to the Supreme Court is not a matter of right; it is a privilege and it can be denied to any person for reasons that pass constitutional muster. Other than his professional qualifications, Mr Mwige fails to demonstrate why he should be considered over other candidates for the position. He does not, for instance, demonstrate how his career in the practice of law elevates him above the other candidates, or whether his presence in the Supreme Court would advance the cause of justice in this country. He does not show, for instance, whether as a member of the LSK he has initiated any programmes with a view to reforming the Judiciary or to improve the practice of law in Kenya and improve the image of the profession for the good of the nation.
The JSC is not without blame. In contrast with the Constitutional Implementation Commission, the JSC has not set up a credible public communications infrastructure to provide complete information to the public as to the manner it conducts its affairs. In the 21st Century, the cost of setting up and managing a website is not longer prohibitive and the failure of the JSC to do this counts as a mark against it. The accusations of opacity in its deliberations will not go away so long as aggrieved candidates are denied the opportunity of viewing the criteria with which the Commission has based its decisions on. It must therefore, undertake to review its practice with a view to continuously provide information to the public with which its successes or failures can be gauged.
This is a lesson that must be taken to heart by all public institutions. One reason why Kenyans clamoured for reforms was because their institutions, indeed their government, went out of their way to hide information regarding their actions.Under the new constitutional dispensation, especially given the constitutional right to information, this situation cannot persist. For Kenyans to have full confidence in their institutions, they must take the unprecedented step of opening up their books to public scrutiny. Anything less would be a betrayal of the trust Kenyans have placed in these new bodies to safeguard the public interest from personal and political interference. Transparency is one of the cures for lack of faith and trust in government and its institutions. We must all be prepared to embrace the new era or be tainted by the same brush that tarred the KANU and Kibaki eras.
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