In September 2016, I was interviewed by the Judicial Service Commission for the office of the Chief Justice and President of the Supreme Court of the Republic of Kenya. I wasn’t offered the job. That’s the only substantive official position I’ve sought in Kenya since I became a lawyer decades ago.
I don’t count my short tenure as the chair of the truth commission task force in 2003 as a real job. I’ve been blessed with an immensely successful career as a legal academic in the United States. The CJ job would’ve given me a chance to serve Kenya. I didn’t think the JSC was transparent in choosing the CJ nominee in 2016. That’s why I am revisiting the matter.
I need to clear the air on several issues. First, I wasn’t seeking the CJ job as a capstone in my legal career. I am fundamentally an academic, but the job would’ve been a great professional detour to give back to the country of my birth. I would’ve returned to the academy at the conclusion of my tour of duty.
Second, the job would’ve been personally constraining and financially unattractive. I didn’t seek it for the money or perks. I don’t make this point to be pompous, but to complete the record.
For years, folks questioned why I didn’t go back to Kenya and participate in the challenges, opportunities, joys and sorrows that my compatriots there live with every day.
My answer was always the same – I have been deeply involved in the country’s life, in spite of the distance. So, geography hasn’t been a big barrier to me. I am a global citizen who contributes from anywhere, any time. I believe my record speaks for itself.
However, I thought being on the ground and working directly with the judiciary was a calling. As it turned out, the rogue JSC didn’t see it that way. What was supposed be an interview to recruit me turned into an ugly and nasty inquisition.
Initially, as is well known, the JSC threw up artificial barriers to lock me out of the shortlist. It was only pursuant to a Katiba Institute suit that Judge George Odunga ordered the JSC to drop its petty frivolities and interview me. Once on stage, former AG Githu Muigai did everything to discredit me. He was joined in that ignoble charade by several commissioners. The public was aghast.
Particularly appalling were three lines of questioning. Was I a Christian? Clearly an unconstitutional question. Did I have the right qualifications? An ignoramus’s absurdity. Finally, did I recognise Uhuru Kenyatta as President? This last one took the cup. I was OK and took all of it in my stride.
Be that as it may, the interviews concluded and Justice David Maraga was announced the CJ nominee. Mr Maraga is a good and honourable man. I paid him a courtesy call later and we had an enjoyable working visit.
Despite several efforts by civil society groups, the JSC refused to make public the grading scheme and scores for the 2016 CJ interviews. What was the JSC hiding? I believed by the failure to abide by the predicates of transparency – which the Constitution unequivocally commands – the JSC was engaged in an illegality.
This piggish opacity by the JSC would damage the credibility of the nominees, including the CJ. It also absolutely makes a mockery of the publicly televised interviews.
That’s why I decided to demand that the JSC release all the 2016 interview scores for every candidate by every single JSC commissioner.
In a strange response, the JSC argued that doing so would “prejudice the applicants”. So, the public is supposed to just take the word of the JSC commissioners as honourable?
By submitting to publicly conducted interviews, both the applicants and the commissioners give up any expectation of the right of privacy as to the outcome of the interviews. In fact, the only way to hold the JSC and its individual commissioners accountable – and to make sure there’s no corruption or rigging of the scoring – is to make the marks public. This would ensure full transparency.
That’s why I and Katiba Institute have sued the JSC demanding the public release all candidate scores from the 2016 and 2021 CJ and judge interviews by every JSC commissioner.
We wanted the JSC restrained from nominating the CJ and Supreme Court judge candidates until it released all the scores. But they rushed to nominate them to defeat our suit. However, our suit will continue until the JSC makes public what it’s hiding.
This isn’t about CJ Martha Koome. My suit preceded her nomination by the JSC. We are sunk as a country if the courts and the JSC – the guardians of legality – can’t uphold the Constitution and the rule of law.
Makau Mutua is SUNY Distinguished Professor and Margaret W. Wong Professor at Buffalo Law School. He’s chair of KHRC. @makaumutua
