Protestations by some Supreme Court judges against calls for their retirement and allegations of corruption and incompetence in the Judiciary are troubling. This has further been complicated by forthcoming retirement of the Chief Justice (CJ).
Undoubtedly, the Constitution has progressively improved governance systems. Its implementation on the other hand has unforeseeably triggered territorial wars among the arms of the government.
While such political wrangling is expected in a thriving democracy, it can nonetheless turn into a constitutional crisis if not well managed. Whereas the implementation of the Constitution is a national obligation, the protection of fundamental principles upon which the implementation is anchored on is vested on the Judiciary under the stewardship of the chief justice.
This reason and many more call for a judicious selection of the next chief justice. Whereas history will put the current CJ’s performance in the proper perspective, it will not forget his stewardship that held the country together during the highly contentious presidential election petition.
The decorum, under which the hearings were conducted cultivate judicial reputation that earned public trust.
In execution of its role as the final arbiter of the petitions, the Supreme Court exercised a remarkable balance between judicial independence and accountability, which was reflected in the court’s opinions. Retrospectively, such balance saved the country from degenerating into violence.
Striking the right balance between judicial independence and accountability is premised on judicial reputation that the next CJ must seek to jealously protect.
Therefore the recruitment and vetting process of the next CJ must thus be handled with care and sobriety to ensure that we get the right candidate.
It is in the fire of the next CJ’s convictions that our new constitution will continue to be moulded through legal interpretation in a manner that will reinforce the foundation Kenya’s liberty and prosperity. These convictions must be a function of candidate’s life experiences, judicial philosophy and academic training.
But equally important the candidate must demonstrate a profound understanding of the socio-economic framework of our country including the history of our political struggle toward constitutional democracy.
Our hope is that the stewardship of the next CJ will guide the Supreme Court to steer the constitution implementation process.
Such steering must balance equity and efficiency consideration to tame the distributive impulses that has been unforeseeably unleashed by the constitution implementation process.
The Constitution empowers the President to appoint the CJ with recommendation of the Judicial Service Commission, and the National Assembly’s approval. The CJ is insulated from political interference by ensuring that his or her salaries are drawn from the Consolidated Fund and not tied to performance.
This constitutional design is premised on the assumption that perfectly independent CJ will interpret the Constitution based on his or her judicial philosophies that is embodied in his or her convictions of what is right.
A careful selection of the next CJ is one way of ensuring minimum level of judicial quality but it cannot ascertain that the CJ will work hard later or that he or she will interpret the Constitution in the public interest.
It is therefore important for Parliament to subject the nominees to a thorough scrutiny on their probity, integrity and intellectual capability.
Conventionally, judges derive utility from deciding cases in a way that is consistent with their personal preferences. To safeguard Kenyans’ interest, Parliament has a responsibility to go beyond verification of judicial ability of a candidate. Specifically the Parliament must look for other indicators that would ensure that his or her reputation is impeccable.
Prof Kieyah is a policy analyst
SOURCE: BUSINESS DAILY