By applying to be Chief Justice directly from the High Court, Said Juma Chitembwe is for many a long shot at the possibility of success. His application is intriguing for that reason.
The job of CJ requires more than mere qualification and professional credentials. It calls for character exhibited by courage, which Justice Chitembwe possesses in no mean quantities.
Justice Chitembwe was appointed to the High Court by President Mwai Kibaki in2009. At the time of his hiring, he had been in legal practice for more than a decade, having been admitted to the Bar in 1991.
His judicial service made him bestride the High Court in Nairobi, Meru, Kakamega, Migori and Malindi.
Justice Chitembwe joined the Judiciary as a corporate counsel to the National Social Security Fund where he served for about six years in various capacities, the last being corporation secretary and head of the legal department.
For those who advocate cross disciplinary perspectives in a judge, Justice Chitembwe would be a good example in the myriad qualifications he holds in other disciplines in addition to law.
He possesses a Bachelor’s and a Master’s degrees in Law, a Master of Business Administration degree and is pursuing a doctorate in peace and conflict studies.
In assessing his suitability for the office of CJ, one would say that in addition to the dry qualifications prescribed by the Constitution, Justice Chitembwe does not lack in the area of character.
His judgments while in the High Court, particularly in the context of criminal appeals, display this beyond argument.
In an appeal by a man who had been tried and convicted for defiling a 14-year-old girl, Justice Chitembwe took a legal reasoning that was unpopular and surprising if for no reason other than the boldness with which he dealt with the issue.
“It can easily be concluded that it is immoral for one to have sex with a child under the age of 18. However, where the same child who is protected by the law hopes to go into men’s houses for sex and then goes home, why should the court conclude that such a person was defiled? That cannot be defilement,” Justice Chitembwe said.
He went ahead to say that though the public would frown upon an adult engaging in sex with such a child, it should not be forgotten that circumstances have changed.
In acquitting the appellant, Justice Chitembwe concluded that it would be unfair to convict and send someone to a 20-year prison term, yet the complainant was enjoying the relationship.
Justice Chitembwe again expressed concern that it would be imprudent and unfair for a teenager to risk spending 15 years in jail for defiling another teen with whom evidence was clear he had an intimate relationship for a long time and had promised to get married to.
Justice Chitembwe was concerned that the law of defilement was being applied in a discriminatory manner against males.
Whatever one thinks of these much-maligned decisions, they underline an indicative trait about the judge.
First, he is willing to apply strict scrutiny to the manner in which the law is applied and at least in the case of sexual offences, thinks that the courts should prevent the use of prosecuting power selectively.
The other is that he is indifferent to public opinion when making judicial decisions, which is as it should be with a judge and even more for a CJ. Make the decision according to the law as you understand it and let the chips fall where they may. In this regard, Justice Juma Chitembwe has shown his mettle.
The judge is also a loner. Of all the applicants, he is the only one who has had to be arrested and charged while still in office. In the year of his appointment to Judiciary, Justice Chitembwe was arrested and arraigned for corruption.
This may explain his view and jurisprudential approach to what others may see as leniency towards accused persons. He has an understanding and the experience of what it means to be accused and to be dragged through a trial only to be acquitted for lack of evidence.
This is an experience a person keen on reforms may need to possess. A CJ who has been a litigant would bring to the office an experience, which would prove useful in determining what needs to change about the criminal justice system.
Justice Chitembwe will be a formidable candidate if the Judicial Service Commission determines that the core competency of the next CJ should be courage, multi-disciplinary intellectual posture and an experience-based understanding of what needs to change in the Judiciary.
