Kenya: Storm Greets JSC List of Nominee Appellate Judges

Disappointment and claims of conspiracy continue to mark the publication of a list of 11 nominees to be appointed as Court of Appeal judges.

Almost a week after the Judicial Service Commission (JSC), released the list, complaints remain, with claims that some commissioners conspired to lock out certain candidates.

Already, the recently elected representative of the Law Society of Kenya (LSK) in the commission, Mr Macharia Njeru, has registered his objection to the list for disregarding a proposal to have at least two advocates from private practice and academia.

Also ignored in the appointments were judges of courts of equal status as the High Court, such as those of Lands Court, Environment Court and Employment and Labour Relations Court.


The LSK has formally complained to Chief Justice David Maraga.

A letter LSK president Allen Gichuhi wrote to CJ Maraga on July 23 reads in part: "The practice in past appointments took into account the need to bring in a diversity of experience from both the bench, bar and academia. In this regard about 40 percent, or thereabouts, of appointments were reserved for members from private practice and academia.

"This time round, only nine percent of candidates selected came from private practice. In addition, not a single candidate from the courts of equal status made it to the list. In all fairness, while appreciating that the Judicial Service Commission has the discretion in the interview process, we recommend that all future appointments to the Court of Appeal provide a ratio of appointments from the High Court, courts of equal status of the High Court and from the bar. This will ensure fairness and equity in the final appointments."

Mr Njeru's position, which has been supported by LSK, lifts the lid on what JSC insiders say was a process full of intrigues.


But even as LSK protests over the list, its other representative in JSC, Ms Mercy Deche, has maintained a studious silence, at least in public. Ms Deche currently serves as JSC vice chairperson.

At least two High Court judges who were applying for a third time have also been left disappointed with JSC after they were again left out, as JSC sought to strike a regional balance.

One of the judges is said to have sworn not to apply for any vacancies in future as he believes his employer does not like him.

Along with the disappointment are claims that the JSC conference that came up with the final list of nominees for appointment was marked by vicious fights as members accused each other of awarding certain candidates higher marks while failing others.

The claims are that some four JSC members led by a top judge who sits in the commission had earlier before the interviews began identified their preferred candidates.

During the interviews, these four commissioners awarded high marks to the three candidates they preferred -- a woman and two men.

In some cases, other JSC members noted that the three scored as high 95 percent in certain aspects of the interview.


On the other hand, the four were awarding other candidates they did not want low scores, in effect knocking them out of contention.

The JSC has 11 members, including the Chief Justice who is the chairman.

The alleged behaviour of the four commissioners infuriated other members but by then it was too late.

But former JSC commissioner, Prof Tom Ojienda, disputes the claims of conspiracy among members. "The practice at JSC is that every commissioner is given a form to score candidates during the interviews.

As soon as the commission winds up interviewing a candidate, the forms are placed in an envelope, sealed and kept at a safe place until they are opened after all the interviews have been completed.

"It is not possible for a commissioner to know who has scored what until the envelopes are opened because there are no consultations," said Prof Ojienda.

There is no level of conspiracy that can bring out a candidate unless everyone at the commission conspires to score them highly, he adds.

"How would four people out of 11 tilt outcomes of the commission if, for instance, the others decide to award low scores?" he posed.


Prof Ojienda also faulted LSK's complaints against the list of nominees.

According to him, JSC should be congratulated for doing a good job and advocates who did not succeed should bid their time and wait for future openings in the Court of Appeal.

Some sources have also alleged that there was a standoff over three candidates who scored highly.

Justice Fred Ochieng, Justice Luka Kimaru and a commissioner with Ethics and Anti-Corruption Commission Mwaniki Gachoka were not nominated despite apparently scoring highly in the interviews in what our source said was as a result of disagreements among commissioners.

Some commissioners were pushing to have them nominated while another side, mainly composed of the four referred to earlier, vehemently opposed their appointment.


The opposition, our source says, was both to balance the ethnic question but also that a senior JSC member had previously disagreed with two of the judges.

Had Mr Gachoka been nominated, he would have been the second non-serving judge in the list. Commissioner Njeru wanted JSC to have at least two non-serving judges in the list but only ended up with Dr Imana Laibuta.

For now, the JSC has moved on to hiring of judges of the High Court and other courts of equal status. But like in the past appointment of judges, controversy is never far away.

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