The procedure for selecting a CJ – and other judges

Meeting the Star’s Tuesday night deadline for this piece, I was hit by the news about the Judicial Service Commission having shortlisted 6 candidates for CJ. My purpose had been to stress the need for a thorough approach to the job.

On Monday the JSC started preliminary scrutiny of applications for posts of Chief Justice, Deputy and Judge. It seemed possible that a few might be eliminated at this stage. Some might have failed to submit all the information required. This included five samples of their professional writings, such as judgments – in the case of those already judges – written submissions to courts or scholarly writings. They had to declare their income and liabilities over the last three years, and submit clearance certificates from the seven different agencies, including the revenue authority and Law Society.

One candidate seems to have obtained his first law degree only about 5 years ago – so could not have accumulated 15 years of experience in legal fields as the Constitution requires. For people who have been doing things that do not fit into the categories of “Judge, academic, judicial officer or legal practitioner” it was necessary to check that what they have been doing has really involved using their legal knowledge and skills.

The next stage

Other aspects surely needed closer scrutiny. The Constitution requires “high moral character, integrity and impartiality” and the JSC has added (drawing somewhat on the law about vetting of judges) communication skills, fairness, good temperament, making of good judgments in both legal and life experiences and commitment to public and community service”.

And inquiring into legal abilities requires great care. For candidates who are already judges there is a good opportunity to assess their legal (and writing) skills by scrutinising their judgments. High Court judges usually write alone – unless part of a larger bench. But Court of Appeal judges sit usually in threes (occasionally more). Often the Court of Appeal delivers a single “judgment of the court” –making it hard to assess each judge’s contribution. If presented with a joint judgment as evidence of judicial ability, the JSC should inquire very closely into the contribution of the individual candidate. A bad judgment is evidence of poor judicial skills: either the candidate judge went along with the bad decision, or was too lazy or disengaged to pay attention to what was being produced in his or her name.

In some countries, how often a judge’s decisions have been overturned in an appeal court is a way of judging competence. But here there may be some limitations to that approach. There have perhaps not been so many appeals under the new constitution, yet we need to evaluate judicial competence not just by the old standards but also by new ones that support the constitution.

Even if three judges sit in the Court of Appeal and only one on the High Court, there is no guarantee that the former’s judgments are better, especially in our new constitutional context. Conservatism of a legal sort, technicality and formalism has characterised some recent Court of Appeal judgments – though by no means of all judges.

Surely the JSC should not limit itself to the five pieces of writing of which the candidate is most proud? Must the JSC not do its own research? Does it have the staff? It will certainly need help – and everyone who has some input to make to help it should feel obliged to contribute, and the JSC should be grateful and take these contributions seriously. Indeed, hopefully it will invite inputs.

The task is made no easier by the impoverished state of our legal literature. There are few law journals where comments on judgments can be published. And not enough law teachers have the time or commitment to write comments. Academics should feel a responsibility to alert the JSC to any literature relevant to assessing the candidate judges.

The JSC originally announced that shortlisting for interview would take three weeks. I wondered whether this was long enough. Shortlisting must be painstaking and thorough. Not everything can be learned from interviews. Writing is a valuable source of information. At interview the JSC should press candidates on the topics of their writing to ensure that they are actually the authors. There have been too many stories of especially master’s theses being written by someone not the name on the title page – even for magistrates.

In fact the JSC seems to have merged its initial scrutiny of application with the shortlisting. It knocked out a majority of the candidates for CJ on the basis of what can only have been a very perfunctory consideration, no public input at all, and (by Wednesday morning) no indication of the criteria used.


The mechanism

The JSC is independent; there is only one official government voice: the Attorney General (who should not forget his constitutional duty to “uphold the rule of law and defend the public interest”). Seven are members of the judiciary or the legal profession, chosen by the bodies to which they belong. This supposedly independent element is a bit undermined this time because one member is a candidate for CJ (but can presumably participate in the deliberations about the other posts).

The independent character is also undermined by the slightly odd provision that the President appoints two people to represent the public – and that those he did appoint seem rather too close to government for our comfort. This is another example of an error on the part of the Committee of Experts. It might have worked when they were proposing a parliamentary system, with the President as head of state, not head of government, supposedly a person with some independence of action and mind, a symbol of national unity, elected by the people. But the CoE ought to have realised that their idea was quite inconsistent with the Presidential system of government, adopted by the MPs in Naivasha, because of the risk President would no longer exercise this power for its intended purpose. Also, what a pity the President could not resist the temptation to appoint voices of the ruling coalition.

There is much written about ways of appointing judges, and our mechanism for appointing judges is one of the best. Recently a court affirmed its independence by holding that a change in the law to give the President a choice between three names for CJ was unconstitutional. But this, of course, is meaningless if the voice of the President somehow prevails in the so-called “independent” JSC.


How will it work?

The Constitution sets new standards for justice, including “justice shall be administered without undue regard to procedural technicalities”. At least one judge (an applicant) was advised by the Vetting Board to avoid too much reliance on technicalities especially in constitutional cases.

Technical legal skills are essential. And they are not necessarily on the side of conservatism and dominant classes. But the application of legal imagination and sensitivity to social realities are also crucial qualities, especially for our apex court in the new era.


The vetting board

Some applicants failed the vetting process first time round. On re-vetting or review they were held “suitable”. It is suggested the JSC ought to look at the vetting board records (not just the published decisions). This is not “double jeopardy” (like being tried twice for the same crime). Candidates are in no danger of losing their current positions. But the JSC should ask – even if they were suitable for their current positions, does it follow they should be promoted? Sometimes the vetting board did not explain clearly why second time round it cleared a judge about whom it was damning first time.


There are too many conservative forces, in the judiciary and in government, waiting to drag us back to the past when competence was undervalued, status overvalued, a hot line to State House in operation and faith in the institution low. Can we trust this JSC to resist?

Jill Ghai, Director Katiba Institute


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