Intrigues in picking of Kenya’s next CJ

 The recruitment process for the next Chief Justice and judges of the Supreme Court has entered the final stages ahead of the interviews next month. Last Wednesday, the Judicial Service Commission (JSC) finalised stakeholder consultations during which matters concerning regional balance, experience, gender, age and insider-outsider considerations were thrashed out.

 Key considerations in the process will also include legal, jurisprudence and judiciary leadership. The recruitment panel is expected to also factor in soft skills as the JSC will look for an individual “who will work towards creating a medium of cordial relationship with the Executive and the Legislature,” says Prof Tom Ojienda, a former JSC member.

Prof Ojienda argues that in terms of experience, Justice William Ouko and lawyer Fred Ngatia emerge the strongest from the list of the shortlisted applicants.

Among the shortlisted applicants for the Chief Justice position, Justice Ouko has the most extensive court experience, having risen through the ranks from a District Magistrate II to the President of the Court of Appeal.

The only applicants who were admitted to the Role of Advocates before Justice Ouko are Senior Counsel Ngatia (1980), Justice Njagi Marete (1985) and Senior Counsel Philip Murgor (1986).

Ouko shares the same year of admission (1987) to the roll of advocates with Lady Justice Martha Koome, who joined the Judiciary much later, in 2003, after a distinguished career as a human rights defender.

Out of the 15 Court of Appeal judges, it is only Justice Ouko and Justice Koome who have applied to be the country’s next Chief Justice.

On his part, Senior Counsel Ngatia was employed by the Attorney-General in June 1980 upon completion of studies at the Kenya School of Law.  He then resigned to set up a private legal practice through which he established himself as a high-profile advocate.

The other applicants from the Judiciary — judges Marete, Chitembwe and Nderi — are from the High Court.

Outsider vs insider tag

From the stakeholder engagements, the issue of whether the JSC should pick a Judiciary insider or an outsider featured.

“I will support the appointment of an outsider as he or she will easily deal with the many challenges the Judiciary is facing, unlike an insider who has been part of the system,” argues lawyer Wilkins Ochoki, the South Nyanza Law Society of Kenya Branch Chairperson.

From the list of the applicants, the outsiders — those who are currently not judges — are Mr Ngatia,Mr Murgor, Prof Kameri Mbote, Prof Wekesa Moni and Ms Yano Alice Jepkoech. Among these, Mr Ngatia and Mr Murgor have been active in court corridors, while Prof Mbote and Prof Moni are academics.

Mr Murgor is associated with some reforms during his time as the Director of Public Prosecutions, where he helped start the process of removing the police from prosecution, helped in crafting several laws used in the fight against corruption, and was instrumental in ensuring that 24 nominees for Senior Counsel Position were conferred with the title after a long impasse.

Lawyer Omwanza Ombati says Mr Murgor “did a good job as DPP”. However, he says, Mr Murgor is likely to face questions about his temperament during the interviews.

The other formidable outsider is Mr Ngatia, who has handled several key cases, among them an Advisory Opinion in 2013 in which the Senate sought a determination of which House should originate a money Bill, and in 2015, when he successfully challenged the mandatory death penalty upon conviction of murder. He was also involved in the 2017 Presidential election petition.  In 2019, Mr Ngatia also led a legal team in an Advisory Reference filed at the Supreme Court regarding the Division of Revenue Bill.

Prof Mbote, a former Dean in the School of Law at the University of Nairobi and one of the country’s most decorated legal scholars, has enjoyed a stellar record in academia. She is Kenya’s first woman law professor.

In 2019, Prof Mbote made history by becoming the first woman, and only the sixth individual in the history of UoN, to receive a Higher Doctorate degree.

Prof Wekesa, the Dean of Law at Daystar University, has a Masters and PhD in Sports Science from Germany. He started the law schools at Mount Kenya and Daystar universities, and his expertise has on several occasions been sought to restore sanity in Kenya’s chaotic football administration.

Although both Prof Mbote and Prof Wekesa are distinguished academics, they have had limited experience in the practice of law, either in the Bar or Bench. They will have to prove to the JSC that this is not a disadvantage.

Ms Yano, from the group of outsiders, has in the past served as the Maendeleo ya Wanawake Chairperson in Elgeyo Marakwet County.

Regional balance

The selection of the CJ will be guided by provisions in the Constitution for consideration of regional representation in the Supreme Court. Since it was formed, the so-called big five communities have enjoyed representation in the Supreme Court, with the other two slots going to smaller groups.

Gender

Out of the shortlisted applicants, three of them are women — Prof Mbote, Ms Yano and Justice Koome. “The question is, will we have a situation of having a CJ and his or deputy being of the same gender?” Constitutional lawyer Omwanza Ombati asks. The principle in the last two recruitment processes has been to strike a gender balance between the CJ and the Deputy.

Integrity and performance

The JSC will also be looking at the integrity of the men and women before it. Some of the applicants, even though cleared of allegations, will still face questions during interviews. The allegations that some of the applicants have faced included corruption, breach of the Constitution and abuse of office.

Who will the ‘system’ favour?

Away from the JSC interviews, there is an elephant in the room known as the ‘state machinery’. Indeed, the question lingers: will the State in any way influence JSC members, or will they resist such attempts? Some of the short-listed applicants are perceived to be pro-establishment while others are considered independent-minded. Will the JSC take the side of applicants considered to be pro-establishment or will they build consensus around a more centrist candidate?

Age

From the stakeholder engagements, the issue of age also came up. “The CJ should be a man or woman who should not be there for too long. If you get a CJ who serves for, say, 10 years, and he or she gets it wrong you are stuck with him or her for all those years and there is nothing you can do about it,” lawyer Ombati says.

However, the counterargument is that a younger CJ will have enough time to implement reforms and leave a mark.

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