13 May 2011

Kenya: Judicial Officers Should Read Signs of the Times With Selection of Reformists


Nairobi — I hope the Judiciary understood the radical message the Judicial Service Commission sent their way in nominating civil society luminaries Willy Mutunga and Nancy Baraza as Chief Justice and Deputy Chief Justice.

These are people who ordinarily are sniffily dismissed in officious circles as "activists". Yea, now the shoe is in the other foot.

More tellingly, the judges who had fronted themselves as candidates had smugly assumed that their judicial experience, such as it is, would carry the day.

Neither Dr Mutunga nor Ms Baraza have ever sat on the Bench. They are outsiders. Their nomination heralds a clean break with the institution's past; a past that has been powerfully discredited.

The CVs of the nominees have for two weeks been minutely dissected by the media and the public. For Dr Mutunga especially, I know the matter of his earring has been an issue of widespread mirth.

But suffice it to say he represents a great deal more than an earring. He represents a veritable sea of change for the Judiciary.

For one, he is among the two or three topmost constitutional lawyers in the country, and the first indigenous Kenyan to teach the subject at university level.

Of the 10 candidates who came forward for the CJ's job, he is the only one with a PhD in law. Two, there is his public advocacy record, what Establishment types glibly term as "activism".

His imprint is everywhere -- from participating in the founding of the Public Law Institute to that of Kituo Cha Sheria and the Kenya Human Rights Commission.

He is the same Dr Mutunga, alongside Prof Kivutha Kibwana, who spearheaded the early push for constitutional change in the 1990s under the banner of the National Convention Executive Council.

This is one person who has achieved more in transforming the constitutional landscape of the country from where it was during Daniel arap Moi's misrule than all the combined members of the Judiciary he is now set to preside over.

Appointments such as these tend to be a complex compromise of political, institutional and ethnic interests.

Rarely is a candidate's brilliance the only, or even the main, consideration. But in this instance the JSC has come nearest to the ideal.

It was never a sure thing, though. In the days and weeks leading to the announcement, it was an open secret lobbying directed at the JSC was going on in a furious way.

It is alleged one judge who was a candidate personally carried out such lobbying to an uncomfortable level, prompting a standoff within the JSC.

Leading advocates also turned themselves into active lobbyists, with many a surreptitious dinner reported as D-Day neared.

One lawyer friend -- seeking to split hairs -- argued that there is a difference between lobbying and canvassing. "Lobbying is legitimate, while canvassing is not," I was told.

There were enough reasons for the JSC to tread carefully. One was the very public, televised way the interviews were conducted. Some people had criticised the process for its inquisition-like interrogations.

But it soon became clear to the majority on the JSC panel that if they were to nominate a candidate who was outrightly unqualified in every sense, the JSC and its credibility would be laughed out of town.

Besides, there was the rumoured possibility of a panellist or two going public in an embarrassing way if his JSC colleagues commandeered for nomination a candidate who was clearly unsuitable.

As of Thursday night, the betting among knowledgeable legal circles was that JSC was headed for a split vote, with a fancied High Court judge vying almost neck-and-neck with Dr Mutunga.

It is believed Dr Mutunga decisively turned the tables on the other candidate during the final vote pitting the top two finalists.

All along, the choice was seen as between "conservatives" and "progressives".

Yet if any of the political factions would imagine that they can claim Dr Mutunga as their own, let them think again. His record speaks otherwise.

Copyright © 2011 The Nation. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). To contact the copyright holder directly for corrections — or for permission to republish or make other authorized use of this material, click here.

AllAfrica publishes around 2,000 reports a day from more than 130 news organizations and over 200 other institutions and individuals, representing a diversity of positions on every topic. We publish news and views ranging from vigorous opponents of governments to government publications and spokespersons. Publishers named above each report are responsible for their own content, which AllAfrica does not have the legal right to edit or correct.

Articles and commentaries that identify allAfrica.com as the publisher are produced or commissioned by AllAfrica. To address comments or complaints, please Contact us.