logo
ADVERTISEMENT

GHAI: How to interview a judge

The tone of the interview should be non-confrontational, and candidates treated with dignity.

image
by The Star

Siasa04 August 2022 - 11:34
ADVERTISEMENT

In Summary


• Interviewing judges is not an easy matter. It is made even more difficult when the interviews are conducted in public.

• Advice on fair interviewing for appointments generally may stress that similar questions should be asked of all candidates so they can be compared.

Judge Jessie Lessit during interviews of Court of Appeal Judges at JSC offices in Nairobi

The Judicial Service Commission sent the names of seven judges for promotion to the Court of Appeal, and this time, the President appointed them without objection or even delay.

I was struck by the fact that the JSC had asked at least two candidates for promotion about their views on abortion and the position of LGBTI (Lesbian, Gay, Bisexual, Transsexual and Intersex) people.

This seemed depressingly like things that candidates for appointment to the highest American courts have been asked by the Senate, which is required to confirm their appointments.

In the US, this is not just about abortion and the LCBTI issues but also about how legally and politically conservative the candidates are — indeed, recently, how sympathetic to former President Donald Trump they might be.

Do we really have to follow the US like this? I wondered.

Do judges get asked about their views on whether and how law can transform society, increase equality, tackle poverty, and constrain governmental excesses? What in fact do they, and should they, be asked?

Interviewing judges is not an easy matter. It is made even more difficult when the interviews are conducted in public. Advice on fair interviewing for appointments generally may stress that similar questions should be asked of all candidates so they can be compared. But this might give an advantage to the later interviewees.

And interviewers might feel they could understand a lot about a judge’s attitudes and even competence by discussing with them a particularly difficult case. But if the interview is broadcast and there was anything said that indicated the judge almost came to the opposite decision, this would be unfair on the parties to the case. The party who lost might feel that the actual outcome was unfair.

The function of the public interviews in Kenya is rather different from the US. Here, the JSC appoints the judges (in the sense that the President is supposed simply to approve its recommendations). (This not true of appointments of the Chief Justice and Deputy were there are also interviews by a parliamentary committee.) In the US, the selection is done by the President and the Senate holds public approval hearings.

Our situation is more like that in South Africa. But their JSC is far larger than ours, and nearly half are political. And for their Constitutional Court the President ‘consults’ the JSC but is not bound by its decisions.

The South Africans have had a good number of controversial interview processes. For example, one recent article refers to interviews in 2021 where JSC commissioners “harangued judges on cases a particular politician lost before that judge.”

Another writer has suggested the inadequate performance was caused by poor leadership, unwillingness of politicians to accept court decisions, and the televising of the interviews – rather than broadcasting them by radio only which he felt would reduce the grandstanding.

The need for guidance to appointing bodies is often mentioned.

IS THERE ANY GUIDANCE? 

Various efforts have been made. South Africa has apparently made two attempts to formulate criteria for appointments. But a recent study of how the South African JSC actually operates discovered that — though it does seem to have in mind certain issues — it was not consistent in its approach.

The issues were the judge’s experience, diversity of the bench, the judge’s command of technical legal matters, and their particular theory or understanding of law. However, over four years the JSC did not seem to have used the issues systematically, sometimes touching on only one for a particular candidate. And interviews ranged in duration from three minutes to nearly two hours (the first candidate was appointed, the second not).

The Lilongwe Principles and Guidelines on the Selection and Appointment of Judicial Officers were adopted at a 2018 conference of southern African Chief Justices. The guidance includes that possible interview questions should be agreed in advance by the members of the body in charge of appointments. But flexibility is necessary in assessing persons from different backgrounds. Substantively similar questions should be put to each candidate. Questions should be relevant to measuring the candidate’s competencies and qualities against the criteria for the appointment.

The tone of the interview should be non-confrontational, and candidates treated with dignity. Robust but respectful questioning may be used in appropriate cases. Interview questions should not seek to serve alternative agendas or take candidates by surprise.

These are generally sensible, but they do not fully address the tricky issues of what specific questions are appropriate and which should be avoided.

REFLECTIONS

To return to questions about a judge’s attitude to abortion or LGBTI rights, I would suggest they are inappropriate. You would not ask a candidate his or her political convictions - still less “How did you vote?” And one rightly criticised line of questioning by the South African JSC was when “a Jewish candidate and Muslim candidate were asked whether their religious observances would interfere with their judicial responsibilities.” This is clearly wrong (even worse of course if Christian judges were not asked the same question).

The Kenyan judges asked these questions knew their views should not affect their decisions as judges,which must be based on the Constitution and the law, the particular facts and the arguments put forward by the parties. And they said so.

But they would not have felt able to say, “I don’t think should ask me that”. A lingering concern must be that their answers (which were very different) may have affected whether they were appointed or not. The judge who was – to put it briefly and crudely - against abortion and gays was promoted and the other not.

Then to be Chief Justice Willy Mutunga and Deputy Chief Justice Nancy Baraza may have welcomed a chance to clarify the matter of whether they were gay when they were interviewed by Parliament in 2011. But I suggest it was in fact wrong to ask them. Sexual preferences are not qualifications for the job. Being gay is not a crime (even if certain sexual activity is).

Exploring technical command of the law is not easy. For someone being considered for appointment or promotion to the High Court or above, the discussion should be quite detailed. Yet they cannot be expected to know all the details of every area of the law.

Exploring their judicial philosophy should be a bit easier, though any senior lawyer should be able to set out a convincing philosophy. And also they would be able to put across some standard and acceptable approach. Is it really theirs?

As the Lilongwe Principles say, robust questioning is all right. It should be possible for a judge to be able to defend his or her analysis of the law. But the line between doing this and discussing specific cases the judge has decided, or probing what the judge would decide if faced with the issue in court, is very fine.

We do not seem to have had the sort of clearly radically misguided and inconsistent interviews that are complained of in South Africa. The absence of a strong political element in the JSC is probably the main explanation for this.

The research carried out in South Africa on what their JSC actually does is interesting and valuable. We need more of this type of research in Kenya.

I may be wrong, but I am unaware that our JSC has published its criteria for making judicial appointments and promotions. The Constitution sets some, expressly or by implication - integrity, competence, independence particularly. Issues of gender and ethnicity are also constitutionally relevant. But some others are necessary, and we should know what they are.

The judiciary is given a central place in the fulfilment of the constitutional vision. Arguably it has been one of the most, if not the most, successful institution given that task. While politicians seems to be depressingly like those under the old Constitution, the judiciary has changed.

The judiciary tells us about its training, performance evaluation and other initiatives. These are important, but first comes recruitment.

ADVERTISEMENT

logo© The Star 2024. All rights reserved