“Growing up…I became acutely aware of the political pathologies around me…I am still baffled by the failure of the Kenyan political class to imagine a larger destiny for the country”
Makau Mutua, Taming Leviathan
I could easily accuse the Judicial Service Commission (JSC) of cowardice. The JSC’s obstinate and obscurantist refusal to publicly provide reasons about how it arrived at the 6 candidate shortlist for the vacant position of Chief Justice (CJ) could point to this: that it is afraid to proffer a statement on this issue knowing that it will immediately expose it to public rebuke and opprobrium.
Instead, the JSC has elected to attempt to cover up its vacuous reasoning by using the fig leaf of protecting the candidates’ right to privacy. Malarkey! Balderdash!
Nonsense upon stilts! By good authority, by August 2, at least two of those adversely affected by the JSC’s decision had still not received any communication of the reasons informing the JSC’s decision.
This notwithstanding, the fact is that the hiring of the head of one arm of government, in this case the judiciary is not a simplistic, private matter to be whispered in hushed tone or behind closed doors between a candidate and the hiring agency, in this case the JSC.
It is essentially a fundamental engagement in the exercise of democratic governance, carried out in trust for Wanjiku, necessitating strict scrutiny and the highest levels of transparency and accountability. In short, it is not simply an exercise to hire for a vacancy but also about the JSC’s fidelity and adherence to the letter and spirit of the constitution.
In Kenya, the executive has demonstrated a gluttonous record of using Chief Justices to further its own parochial agenda and the survival of its regime. This was not possible under the tenure of former Chief Justice Willy Mutunga and suggests a strong reason why there would be an inclination to have a pliant CJ. It is further noted that the Jubilee government’s hold on the JSC was strengthened by its unilateral nomination of clear partisans as representatives of the public under Article 171(2)(h) of the constitution. In these circumstances, suspicions are bound to exist
Underneath this, lie an existing set of contesting rights at play; creating the need to strike a balance that charts a pathway that and protects the best interests of society-- the national interest. At play here, for starters, is a conflict between the candidates’ right to privacy on the one hand and society’s right to know enshrined in Article 35 on the other.
In addition, at play are the national values and principles of governance embedded via Article 10 of the constitution; for instance, Article 10(2) lists “public participation” as one such national value and principle of governance, and as well lists “good governance, integrity, transparency and accountability”.
Moreover, Article 73(1)(a) constrains the JSC thus: “Authority assigned to a State Officer is a public trust to be exercised in a manner that promotes public confidence in the integrity of the office”; adding at sub-article 2 that the guiding principles of leadership and integrity include objectivity and impartiality in decision making and in ensuring that decisions are not influenced by nepotism, favoritism, other improper motives or corrupt practices. Article 73(2)(d) also requires that the JSC is accountable to the public for decisions and actions.
This obviously places a huge transparency and accountability burden on how the JSC conducts itself; which in turn can only be adequately satisfied by ensuring the highest possible standard of transparency and accountability. This would be why former Chief Justice Mutunga reportedly took time to sedulously lay out his thoughts on how the hiring process after his departure should be carried out, to ensure that these contesting rights and obligations are properly managed, satisfied and fulfilled.
The opaque manner by which the JSC has so far conducted itself in this process only raises a deep and credible suspicion that it is now a marionette of the Jubilee government,
which has demonstrated a clear and visible disdain for the concept and practice of judicial independence—and, consequently for the candidacy of
Professor Makau Mutua. The original sin the Jubilants prosecute Makau for was his loud and robust support of the International Criminal Court (ICC) process that had momentarily ensnared its principals, Uhuru Kenyatta and William Ruto. That he proceeded to publicly deny recognition of their presidency only fueled the incendiary fires of their discontent with him.
Lastly, because the Jubilee presidency is not known to favor (in fact it actively frowns upon) independent alternative thought or conduct, Professor Makau Mutua as Chief Justice would be a most unwelcome, unwanted and inconvenient vexation for them. For whereas Willy Mutunga is a reformist taken to wearing a velvet glove over his iron fist, Professor Makau is known to wield his robust iron fist
This is a trait that is likely to lead to
to
differences with heads of the executive and legislature. Makau, consistent with the the historical role of the Supreme Court in a true democracy is sure to follow the eloquent commitment of
US Chief Justice John Marshall in Marbury v Madison that:
…the Constitution thrusts a more extraordinary mission upon the Supreme Court; that the Court was endowed with a roving commission to police the other branches as the central guardian of constitutional principles and the special enforcer of constitutional norms.
Outside these grave fears of the executive’s capture and (re)enslavement of the judiciary, there is one other explanation that the JSC needs to give. Attorney General Professor Githu Muigai had a very public spat with Professor Makau after the latter, in his November 29, 2015 Standard on Sunday column, excoriated the former of “slavishness to Kikuyu political princes” and being “Like a mule…tone deaf to criticism of his inexplicable tenure.”
Professor Muigai promptly responded to Professor Makau, “We cannot be like teenagers externalizing problems, blaming everybody except themselves…” retorting angrily that that the country’s history was now being rewritten by “sanctimonious and pompous individuals.”
Makau’s robustness in the defence and of the constitution is in keeping with the constitution’s explicit mission to the judiciary. Will the AG have him punished for this?
Barely half a year later, Prof. Muigai is a member the same JSC that rejected Makau’s candidature for the position of Chief Justice. So here’s the question: did Attorney General Githu Muigai, given this clear evidence of the dislike of Makau Mutua, declare that conflict of interest to the JSC during its shortlisting proceedings for the office of the Chief Justice?
It should be noted that it is not that the conflict has to be real; the perception that it exists is reason enough for it to be surfaced to the table. Usually, the conflicted party recuses themselves and leaves the room as the rest continue to deliberate and debate.
Under Article 73(2)(ii), one of the guiding principles of leadership and governance for State Officers is “the declaration of any personal interest that may conflict with public duties.” Hence, this principle is not just one of good or best practice, it is a constitutional stricture and provision to protect and fairness in decision making by State Officers.
As a law tutor, it was Professor Muigai who introduced us to the glory and majesty of this concept of fairness, using the words of Sir Thomas More in Robert Bolt’s A Man for All Seasons:
"What would you do? Cut a great road through the law to get after the Devil…And when the last law was down, and the Devil turned round on you – where would you hide…the laws being flat? This country is planted thick with laws from coast to coast, man’s laws, not God’s; and if you cut them down,…do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of the law, for my own safety’s sake."
And so dear JSC, in this matter, have you given him, and thus us, all the benefit of law?