• The JSC, in accordance with the former Constitution, was a club of members who were appointed by the President without even minimal consultation.
• Post-2010, the JSC is almost an independent organ, with various members representing various interests.
The campaign towards filling the Judicial Service Commission position of the male representative for the Law Society of Kenya has reached a crescendo ahead of the May 9 election.
Some candidates are playing dirty. Campaigns are getting gruesome. But beyond the fog, there are clear reasons why advocates should vote, and for whom, which are integrity of the candidate and future JSC and the entire Judiciary; ethical practices of the candidates and judges, magistrates and other court users; and finally, accountability of the JSC, Judiciary and the representative of the LSK to the advocates who elect him.
The JSC, in accordance with the former Constitution, was a club of members who were appointed by the President without even minimal consultation. It was literary a custodian of the Executive, private and other interests, as no one was in this club without enjoying the President’s pleasure in office, as per Section 24 of the former Constitution, which made sure the JSC members served at the whims of the Presidency.
Post-2010, the JSC is almost an independent organ, with various members representing various interests. Unlike the past, the President only nominates two commissioners who have served the public ethically. But some of the choices made in the past and present do not represent ethical or integral people. The other members are elected by various courts (the Supreme Court, the Court of Appeal, the High Court and Magistracy) with the President of the Supreme Court serving as the chairperson. The other members are elected by the LSK (man and woman) to represent diverse interests of the advocates. Of course, the Attorney General is also a nominee of the President, including the two other persons, but vetted by Parliament. Finally is the representative of the Public Service Commission.
INTEGRITY OF JUDICIARY AND JSC
Recruitment into the Judiciary, which has superior and other courts, is determined fully by the JSC. The attempt to ‘capture’ the Judiciary through the Executive whim was defeated following a 2018 court petition. In its determination of several consolidated petitions, Law Society of Kenya & another v National Assembly of the Republic of Kenya & 3 others  eKLR, the Court stated: Section 15(2) of the JSC Act provides that where nominations/elections are made or done respectively…“the section simply directs that names be sent to the President for formal appointment. It does not confer any discretion on the President once he receives the names. He is under legal obligation to appoint the nominee(s) within three days of receipt of the name(s). Once the President receives names of Commissioners determined in accordance with provisions of the Constitution, his mandate is to formally appoint them and nothing more.”
Therefore, the independence of the Judiciary is legally succinct. However, the long delay by the President to formally appoint Justice Mohammed Warsame (as a representative of the Supreme Court) was not only illegal but also further a violation of the Constitution.
Thus, there are many ways in which the State (read, the Executive) could ‘capture’ the independence of the Judiciary. Without the above decision, the JSC would have remained not fully constituted courtesy of this illegal delay. The Courts must keep the JSC independent as envisaged.
The JSC further, given its functions, it is supposed to operate like all other independent offices and constitutional commissions by establishing a fully fledged secretariat, led by a CEO. Therefore, noting the mandate of the JSC, the Commissioners cannot be the only employees. What is thus required is the latter to recruit and appoint staff in compliance with Article 250 of the Constitution. Directorates and departments hence need to be created, but to date, the JSC is a minuscule of what it is supposed to be.
In reflection, part of the Judiciary integrity was somewhat restored under the term of former Chief Justice Willy Mutunga. The JSC didn’t however, have the staff necessary to fulfill its mandate. Such directorates should include complaints’ processing, investigations, inspections of judicial officers, finance and administration, monitoring and evaluation, research on jurisprudence and such others. The JSC is yet to be such an institution.
INSTITUTIONAL BUILDING AND CAPACITY
Building an institution in Kenya is an onerous duty and task, which requires dedication to duty, focus and strategic and policy direction. From the ongoing campaigns, it is unfortunate that propaganda, blatant lies and under-the-belt hits are crowding out the real issues. As an outsider, yes not an advocate, I provide some real issues that these LSK-JSC campaigns are or should be.
First, it is about whether someone vying for the position has ever built any institution; not just headed an institution. The candidates have various strengths, but only one has led and built several institutions, which would qualify for International Organisation for Standardisation (ISO) certifications anytime.
ISO certification certifies that a management system, service delivery, or documentation procedure has all the requirements for standardization and quality assurance.
To date, the JSC cannot meet the standards, but the Independent Policing Oversight Authority, in which one candidate not only led in its creation from scratch but also was the inaugural chairperson, could apply and chances are great that they would be awarded.
Finally, still on the institutional building, Article 27 of the Constitution provides that no public or private organisation shall discriminate anyone of the 17 plus grounds, especially ethnicity, gender or social status. But for the voting advocates seeking to know how integral the candidates are, just take a look at the composition of the employees in their firms.
Over 43 counties were represented at IPOA by May 2018. At the law firm headed by one of the candidates, there is a fair representation of most ethnic communities in Kenya.
ACCOUNTABILITY AND CONFLICT OF INTEREST
Any representative of the nominating or electing institutions to the JSC must be held to the highest levels of integrity and accountability. That is provided for in Chapter Six on Leadership and Integrity and the subsequent Act of Parliament. To be allowed to vie for office, the LSK provided a list of clearances or certifications the candidates were required to submit. Not all of them complied.
One of them never submitted to these accountability requirements, while another delivered the submission late and without any attachments or clearances. Ideally, they should have been kept out of the race. Whatever happened in the LSK Council meeting that approved all the names of the five candidates is simply dumbfounding, and should be investigated by an independent institution.
Further, the former and current members of the LSK who represent advocates at the JSC have continued to appear before judges and magistrates. First, there is a problem when an employer appears before employees recruited by the JSC and seeks for ‘prayers’. Second, other advocates appearing before the same judges and magistrates, will not only be intimidated by the ‘senior counsel’ tag, but their ‘prayers’ may go unheard, in favour of the ‘boss’ of the employees.
Third, which is evidently prima facie, there is definitely a conflict of interest that exists, and if JSC was a functional institution, such codes of conduct should have been developed and implemented, with punishment where need be. Unfortunately, the JSC remains a shell of what the Constitution envisaged.
Finally, the LSK should provide for channels, where the candidate should report back on what lawyers face, and represent them in the JSC, not just serve personal interests. These latter interests are as diverse as what plagues the Judiciary. The courts should be accountable to the people. However, it is facing many threats and ‘captures’, which include the Executive, criminal cartels whether organised or not, and also private interests.
Illustratively, one candidate who has served in private and public sector, has always quipped that any independent institution must be composed not just of independent-minded and decision-making persons, but also that institution should be free from media, Executive, Parliament, civil society, faith-based organiSations, and such organisations. Decisions should be made without influence from any of these authorities and institutions, and one candidate is capable of the same.
Advocates have one choice. To choose a person who could: a) to represent the LSK interests and report back; b) to build the JSC into a viable institution; c) to return the Judiciary to a trajectory of accountability and fight corruption; and d) to transform the access to justice agenda for the most vulnerable, who are either outside or inside prison or police cells. This campaign, therefore, is about integrity, ethics and accountability for those seeking to see Kenya change from what it is now to what the Constitution envisaged. The choice is theirs. Make that difference on Thursday, May 09.
DISCLAIMER: The views expressed herein represent an independent analysis and are only an advisory, on the ongoing JSC-LSK campaign, which the author has followed through in traditional and social media. They do not necessarily reflect those of the candidates.
The author is a political scientist and commentator on political, legal and social-economic issues in Kenya for over two decades