Resistance to the JSC nominees

Given the low public confidence in the judiciary, a situation that has been on going for a while now, one would imagine a break with the past is not only necessary for reform but also welcome.  The Judicial Service Commission’s nominees for the positions of Chief Justice, Dr. Willy Mutunga, and Deputy Chief Justice, Nancy Baraza, provide just that. Neither has sat on the bench, and their qualifications and record as reformers is exemplary.

Though initially celebrated in the few days since the announcement of the nominations, resistance to the nominees seems to have built and gained momentum at an alarming rate among the some sections of the clergy and political establishment.

The clergy stated its reservations as to the suitability of the nominees on the basis of their values and beliefs. Lawyer Harrison Kinyanjui has moved to court to seeking an order to stop deliberation, debate, confirmation, appointment or recognition of the JSC nominees arguing that the nominations contravene the constitution in process and number of names submitted.

However nowhere in the constitution or the Judicial Service Act 2011 is there the requirement that a specific number of names be forwarded to the principles for consideration. Nor does either preclude the submission of just one nominee for each of the positions.

The constitution simply states that the President shall appoint the Chief Justice in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly, Article 166 (1) (a), no mention of numbers.

Section 166 (3) of the constitution does state that the Chief Justice shall be appointed from among persons who that have the requisite qualifications. Article 172 (1) (a) of the constitution states that one of the functions of the JSC is to recommend to the President persons for appointment. Though both provisions speak in the plural when they refer persons recommended by the JSC for appointment neither of sections rule out the recommendation of just one nominee for each of the positions, or require that the JSC forward a certain number of names.

With regards to the process and the allegation of lack transparency on the process of the selection of nominees Section 14 of the First Schedule of the Judicial Service Act 2011 outlines the procedure and criteria used by the JSC in choosing the nominees.

The process is that the commission deliberates and nominates that most qualified applicants taking into account gender, regional, ethnic diversity, 14 (1). Each member votes according to his/her personal assessment of each of the applicants’ qualifications 14 (2). Voting is complete after all the applicants have been considered and all members of the selection panel have voted, 14 (3). In order to be nominated an applicant shall be required to receive three or more affirmative votes 14 (5). It is plausible that this process could have yielded just one nominee for each of the positions.

The opposition and reservation towards the nominees seems to be based on peripheral tenuous arguments and not on the requirements of the law or merit, competence, qualifications or the ability of the nominees to reform the judiciary.

It is worth also noting, as the names have already been submitted to the principals that Section 16 of the First Schedule of the Judicial Service Act 2011, which deals with requests for additional names or reconsideration of nominees, is very specific in stating that the commission shall not reconsider its nominees after the names are submitted to the President except in cases of death incapacity or withdrawal of nominee (s).

Posted by Mzalendo Editor on May 17, 2011

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