By LUKOYE ATWOLI
Sunday Nation 08 May 2011
The Judicial Service Commission (JSC) started the process of interviewing candidates for the position of Chief Justice (CJ) this past week.
The extent of accountability and transparency in this process is unprecedented, and one doubts whether it has been done similarly elsewhere in the world.
Obviously, Kenyans should brace themselves for more open appointment processes for public office, and anyone aspiring to high office must be ready to submit to public scrutiny and an examination of their personal integrity.
Seen in light of constitutional requirements, this process would be a welcome breath of fresh air into our public service. However, it is my contention today that at the present stage in the recruitment process, public interviews of candidates for the position of CJ constitute an overkill.
According to the Constitution, the President is expected to appoint the Chief Justice “in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly”.
This suggests that the JSC will perform the initial (professional) interviews to short list the candidates from among whom the President (and the Prime Minister under the National Accord) will select their preferred candidate.
The selected candidate must then be “approved” by Parliament, which through the committee system provides an avenue for public participation in the appointment.
A basic understanding of this process is that the JSC conducts the technical work of getting a number of clearly qualified candidates for the President to choose from, while Parliament vets the chosen candidate for any issues outside of technical competence that may impinge upon the performance of the office of Chief Justice.
From this perspective, therefore, it is doubtful what value a public interview process adds to the technical evaluation of a candidate’s capabilities.
Public interviews will often only subject the candidates to humiliation and badgering by members of the JSC playing to the gallery, a job that would be better done by politicians sitting in the various committees of Parliament.
If the JSC relinquishes its technical job description and engages instead in a public (read political) “vetting” process, what will the parliamentary committees do when confronted with the eventual nominee?
In my view, the JSC’s technical interview process, as opposed to the more political “vetting” process, should be done in private to ensure that the dignity of the applicants is protected, given that not all applicants will be successful.
The successful candidate may then be subjected to the full glare of publicity to ensure that apart from technical competence, the judge meets societal expectations in areas of social comportment and personal integrity.
In my opinion, Kenyans have a massive challenge in interpreting and implementing constitutional provisions dealing with transparency and accountability, probably because we have grown up physically, psychologically and socially in totalitarian regimes where we knew only repression and unilateral “roadside” declarations.
In our attempt to break clear of the past regimes’ practices, we run the risk of going overboard and raising mediocrity to the high altar of public service, all in the name of increasing public participation in public appointments.
Hopefully, there are at least a few trained legal minds that would find it worth their while to critically interrogate what professional commissions such as the JSC are doing in the name of constitutional implementation.
Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s school of medicine www.lukoyeatwoli.com