‘Tribal balance’ skews CJ hunt

Yano Alice Jepkoech

Advocate Yano Alice Jepkoech appearing before the Judicial Service Commission to be interviewed for the position of Chief Justice at the Supreme Court in Nairobi on April 23, 2021.

Photo credit: Dennis Onsongo | Nation Media Group

What you need to know:

  • Tribal balance will be a key factor in the appointment of the new Chief Justice.
  • Simple deduction, therefore, tells us that half of the 10 applicants might not be considered.

Kenyan television viewers who cite lack of quality local shows to justify a preference for Nigerian, Latin American and Indian fare should have had no excuse for foreign stuff last week.

There was so much local drama with twists and turns that sometimes it was hard to tell if it was interviews for Chief Justice taking place on live TV or recruitment of interns straight from college to serve as unpaid labour for some nondescript law firm.

The 10-part series, which came to a close last Friday after nearly a fortnight run, should make Kenyan TV shows much sought after across Africa and, indeed, the rest of the world.

The beauty of it all is that we don’t have to waste too much grey matter coming up with riveting screenplays, get coronaries looking for funds or spend time putting together casts and scouting for locations. Neither do we have to contend with those busybodies from the Kenya Film Classification Board demanding prior censorship rights on the plots and screenplays.

Ours comes ready-made, live and direct. It adds a new definition to the term ‘Reality TV’, a superior version based on reality rather than the pretend shows put together by the makers of Big Brother, Survivor, The Bachelor, Real Housewives of (Wherever), X-Factor and The Dating Game. And in the best tradition of TV drama, it ends with a twist in the tale that leaves viewers squirming in their seats waiting for the finale. Let’s call it the ‘Who Killed JR?’ factor.

Keen viewers of the show will have noticed an innocuous angle that passed almost unnoticed. Amidst all the drama of courtroom-style legal duelling, lofty discussion on judicial philosophy and interrogation of controversial rulings and adverse mentions, the Judicial Service Commission (JSC) panel chair — who mostly sat in silence throughout the jousting — would pipe in almost apologetically: “What is your home region and ethnicity?” She would explain that the question is required for the purpose of ensuring diversity.

Yes, amidst the galaxy of degrees and double-doctorates on show, years and years of legal experience, landmark cases handled from either the Bench or across from the other side, the Bar, and the usual ‘M’Lud’ pomposities and Latin phrases, it largely boils down to tribe.

Now, diversity is not a bad thing. In a country of various competing ethnic nations where those in power tend to favour kith and kin, it’s imperative that rules and conventions ensure the ‘Face of Kenya’ in the composition of public bodies. We can call it diversity or the cruder definition, ‘tribal balance’. The former wins because it also considers gender, religion and physical handicaps.

Very limited choices

Tribal balance will be a key factor in appointment of the CJ. Here, consideration will be not just limited to the composition of the Supreme Court but wider afield to the make-up of the three arms of government.

The plain fact is that it would be decidedly odd if all three arms of government — Executive, Legislature and Judiciary — were headed from the same region, especially in a situation where President Kenyatta is spearheading the Building Bridges Initiative, a process dedicated to promoting inclusivity in national leadership.

Simple deduction, therefore, tells us that half of the 10 applicants — some with stellar credentials, some with suspect political links and others the usual jokers — might not be considered. That leaves five, of whom nearly half must be knocked out by spectacularly inept performances at the interviews.

That leaves the JSC panel with very limited choices, where it must measure competence against the unwritten rules on diversity, and where the bigger ethnic groups always compete for seats at the table. 

In such circumstances, it is never a case of the best men or woman but a delicate balancing game of regional and ethnic power-plays. But then, even that may not matter too much, looking at the paucity of talent on offer.

Perhaps the Kenyan Supreme Court appointments can be contrasted with the United States, where, despite the obvious political and ideological wars, the nominees, whatever their party leanings, always come with absolutely first-class credentials as legal scholars and/or judicial officers. They have researched and published widely, delivered landmark judgments and earned recognition of their peers in both academia and the courts.

US Supreme Court judges are directly nominated by the President while here they apply for the positions. But that does not explain the clear difference in the quality seen. 

Since our vetting is more drama than substance, we can make the work of the JSC easier if we made the final choice a TV game show vote.

[email protected] www.gaitho.co.ke @MachariaGaitho