Mistakes were made, but a start was made too

The manner in which candidates were short-listed, interviewed and vetted for the positions of Chief Justice, Deputy Chief Justice, Judge of the Supreme Court and Director of Public Prosecutions has come in for intense criticism from many quarters, some arguing that in certain instances, it lacked transparency or accountability. With regard to the CJ and DCJ, the Judiciary Service Commission has a lot to answer for, especially regarding its 'score-card' of the criteria it relied on to short-list the two nominees vetted by the Constitution Implementation Oversight Committee. The CIOC itself, did not acquit itself admirably or honorably, especially when dealing with the candidature of Keriako Tobiko as the nominee for the office of the DPP. That it was divided right down the middle regarding his approval is testament to the fact that either it did not prepare sufficiently for the task at hand, or that political considerations overshadowed its mandate to carry on a clean vetting exercise.

However, we must all come to the realisation that this procedure is new to Kenya. It is the first time that interviews for candidates for high government office are interviewed and vetted in public. The institutional arrangements in place prior to the JSC interviews favoured secrecy and lobbying over transparency or accountability. Appointing authorities, notably the Office of the President, were content to make up their minds in the secure knowledge that no one would challenge their decisions or choice of appointees. Love him or hate him, President Kibaki laid the foundations for the JSC process the day he agreed to sit in a coalition government with Raila Odinga. The manner in which the two horse-traded on who would head which ministry and who would be appointed Permanent Secretary threatened to dissolve the Coalition even before it had began and the fights between PNU and ODM aroused a desire in the people of Kenya to avoid similar fights in future, hence the public process so far followed by the JSC. The panel that short-listed the DPP nominees, which included the Attorney-General (who really should have known better, the COTU Secretary-General and the Chairman of the Law Society of Kenya (who also should have known better), seemed wedded to the traditional business-as-usual attitude prevalent in the inner sanctum of the government. As a result, while many will say the tactics employed by the JSC, especially the public evisceration of reputations, were undesirable, no one will dispute that they are a welcome step from the procedures of the past which sometimes were likened to the manner in which Cardinals elect the next Roman Catholic Pope. If the choice of Keriako Tobiko is shot down in the National Assembly, the next nominee for the office of DPP must undergo a public process similar to that of the CJ and DCJ.

Many mistakes were made in the process, notably the failure to provide for adequate time to allow all Kenyans an opportunity to weigh in with their thoughts of the candidates. Therefore, in future, regardless of the deadlines and timetables that may be imposed in the choice of the next candidate for high government office, the people of Kenya must be given adequate time to participate meaningfully in the process, even if requires the Commission (or some similar body) to travel to the Counties to conduct public hearings. It is the only way that their choices can receive the unqualified endorsement of the masses, much as it may be expensive or time-consuming.