Why Kenyans will wait longer for new CJ
The country will have to wait longer before a new Chief Justice, deputy Chief Justice and a judge of the Supreme Court are recruited.
This is after the High Court on Monday directed the Judicial Service Commission (JSC) to interview all applicants who had met the requirements for the posts but had their names removed.
The interviews began on Monday but the ruling by High Court judge George Odunga is likely to see the process of recruiting take much longer.
“The decision of the JSC made in press releases of July 12, 13 and 15, 2016 rejecting some of the names of the applicants in the commission’s short listing is hereby quashed,” Judge Odunga ordered.
He also directed that pending its consideration of the applicants whose names it had removed, the commission is prohibited from making recommendations to the President on the people to be appointed.
The commission is, however, at liberty to remove the names of those who had not met the set qualifications. Justice Odunga said Parliament had provided a mechanism for the commission to sieve applicants not fit for the job.
“Such applicants whose only interest is their CVs or a temporary moment of fame should be sieved at the earliest time possible. There is no need for those who had never stepped into a law school to move to the next stage,” he said.
Justice Odunga also declined the commission’s argument that it was insulated from interference. He stated that the court has jurisdiction to interrogate the commission’s conduct and intervene when it acted outside the law.
The court said where applicants with similar qualifications apply for the advertised positions and some are selected while others are left out, a concern on bias arises. However, it will be upon the aggrieved party to prove the alleged preferential treatment which had not been presented in the case.
Trusted Society of Human Rights Alliance, Mr Arnold Magina, Prof Yash Pal Ghai and Samwel Mohochi had filed the application to challenge the process of recruiting the three.
The judge said that attempt by the commission to rely on reports from other constitutional bodies such as the Ethics and Anti-Corruption Commission, Kenya Revenue Authority and the Director of Criminal Investigations, to lock out some applicants, will amount to denying them an opportunity to respond to allegations levelled against them.
The applicants can respond to the contents of the reports at the interview stage.
Justice Odunga also said the commission had a duty to inform applicants why they were not shortlisted, adding that as a constitutional team, it had a constitutional mandate to make known all public information within its custody.
He explained that the process of recruiting judges cannot be opened to these constitutional bodies, whose role and mandate is not similar to that of the JSC.
“People should not get jobs because others more qualified than them were locked out at the shortlisting stage,” he added.
He also said JSC had a duty to inform applicants why they were not shortlisted, adding that as a constitutional commission, it has a constitutional mandate to make known all public information within its custody.
“The error that Kenyans were turned away from accessing public information without any basis is long gone with the old constitution. People no longer have to prove their interest or rights being violated inorder to access public information. It is now the duty of constitutional bodies to justify why the information should not be provided,” Justice Odunga.
The privilege to access information does not however extend to private family life information about the applicants which may demean their character in public.