The Nation (Nairobi)

11 June 2011

Kenya: Public Office Seekers to Brace for Mutunga-Style Scrutiny

Nairobi — Few words appear in the new Constitution as frequently as "transparency".

The demand for greater openness in conducting public affairs gathered strength in the past few weeks as the process of picking the new Chief Justice was conducted in a remarkably open fashion, which culminated in the endorsement on Thursday of the new head of the Judiciary.

The public interviews were a stark contrast to the previous method of picking judges which was criticised because of the power the Executive wielded over the process.

The old Judicial Service Commission was dominated by presidential appointees, a situation that resulted in the nomination of judges who were seen as owing their loyalty to State House.

Observers say the public process of picking the nominees, which was done in line with the requirement in article 230 (5, d) that the JSC should operate in a manner that respects the principles of "transparency and fairness," will significantly alter public life in the country.

It may also raise the bar for presidential candidates going into the next elections as the public and the media seek to hold candidates for national office to levels of scrutiny similar to those the applicants for the judicial positions faced.

Political scientist Dr Tom Wolf says the process through which the nominees were picked may prove to be a game changer.

"Whether you approve or disapprove of the level of intrusiveness in the interviews the fact is people will want to know more about those that take up public office going forward," he said.

"With the increased competitiveness expected in 2012 due to the likelihood that there will be a second round, candidates will come under even more scrutiny.

"They will have to invest more in public relations, and since the incumbent is not running, there will probably be debates between the candidates where they will have to submit to detailed questioning."

Televised grilling

The televised grilling of the candidates seeking to the position of Chief Justice and Deputy Chief Justice has also drawn calls for a vetting bill that would be wider than the Vetting of Judges and Magistrates Act 2011.

That law deals only with the vetting of judicial officers, but according to Prof Macharia Munene, there should be clearer ground rules for public interviews to protect both the public interest and the integrity of those taking part.

"It is good that there is a semblance of transparency," he said. "The public will get to know who is being appointed, where and who they are.

"But there should be clearer rules. Right now it's a free-for-all. Sometimes interviewees face questions that seem designed to annoy.

"One has to take into account that some of the judges may be successful in the interviews, and ultimately it undermines the cause of justice if they preside over courts after their esteem has been lowered and their qualifications questioned."

An abiding lesson from the interview process has been the fact that the past record of public figures can catch up with them in ways that can be brutal.

The questions some of the applicants had to face may well be seen as a demonstration of the need to keep a clean record if one aspires to high office.

Nearly all the interviewees had to face questions on aspects of their past that the interview panel contended undermined their credentials for the post of Chief Justice and Deputy Chief Justice.

Most of the questions touched on matters that date back to the Kanu era.

Veteran jurist Lee Muthoga had to face accusations that he did not handle the estate of politician JM Kariuki in a proper fashion after his assassination in 1975.

The JSC questioned him about allegations that first surfaced in the 1990s that he had failed to advise Mr Kariuki's family members on the size of his estate.

The judges that served during the Moi years had to endure uncomfortable questioning about their judgments in an era when the Judiciary came under criticism for essentially being an extension of the Executive.

The frontrunners

In one of the first interviews, Justice Riaga Omolo, who had initially been viewed as one of the frontrunners, was subjected to intensive questioning about some of the cases he was involved in during the Moi era.

The fact that he was one of the judges every time a petition against the election of President Moi came before the courts was raised.

Commissioner Ahmednasir Abdullahi also raised a controversial decision by the judges to reject an appeal by opposition leader Kenneth Matiba, who had suffered a stroke in Mr Moi's prisons, reducing his capacity to use his right hand, on the grounds that he had not signed the appeal.

Samuel Bosire was another judge who came under intense questioning over decisions he had handed down in the past.

The JSC had to ask that cameras be switched off at one point during his interview after the question of his wealth was raised.

More recent appointees like Justices Paul Kihara and Joseph Nyamu had to fight accusations that they enjoyed the patronage of State House and that some of the decisions they had made were designed to favour President Kibaki's administration or his allies.

Nancy Baraza, the successful nominee for the position of Deputy Chief Justice, had to explain her involvement with a group of lawyers that sought to stop LSK leaders Paul Muite and Dr Willy Mutunga from involving the society in politics in the early 1990s.

The view at the time was that the lawyers were endorsing a line supported by President Moi's government which was coming under intense criticism from the LSK.

In the end it was perhaps not surprising that Dr Mutunga, an outsider, emerged as the best candidate.

Unlike many of the sitting judges who had to defend their many judgments, there was little paper trail for Dr Mutunga to defend.

The veteran lawyer has been on the right side of history in most of his years in public life having been one of the few that publicly took a stand against the detention of Prof Ngugi wa Thiong'o and other dissenters to the excesses of the Kenyatta regime in the 1970s.

He was one of the few "Young Turks" from the 1990s who refused to be tempted into taking up government jobs after the opposition swept to power in 2002.

Many of the former opposition leaders are now seen as being as tainted as many of the Kanu politicians they replaced.

The nominees for Chief Justice and Deputy Chief Justice are widely expected to be endorsed when Parliament meets to consider the report of the Committee on the Implementation of the Constitution (CIOC) on Tuesday.

The nominee for the position of Director of Public Prosecutions, Mr Keriako Tobiko, is also likely to be endorsed after it emerged that politicians with an eye on 2012 are reluctant to openly come out in opposition to him due to the fear that such a stance may cost them votes among the Maasai.

Either way, many observers feel that the very public interview process has served as an eye-opener on the high standards required of public figures in the new era and set the stage for greater transparency in future appointments.

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