Thursday, June 16, 2011

Supreme Court Nominees: A Mixture of Continuity and Transformation

Dr. Smokin Wanjala    Ms Njoki Ndungu
The Public Service Commission (PSC) pulled another master stroke when it nominated five Supreme Court Judges after a vigorous and transparent vetting process. The nominees are two judges of the High Court, Justice Jackton Boma Ojwang and Justice Mohammed Ibrahim, one Court of Appeal judge, Justice Philip Tunoi and two nominees from outside the judiciary former Member of Parliament Ms Njoki Ndungu and former Kenya Anti-Corruption deputy director and scholar Dr smokin Wanjala. They join the nominees for positions of Chief Justice Dr Willy Mutunga and Deputy Chief Justice Ms Nancy Barasa to sit in the seven-member Court.

Justice Mohammed Ibrahim
The choice of the nominees has been hailed as a mixture of expertise, gender and regional diversity. The combination of sitting judges and outsiders also represents continuity and transformation. The panel brings in different legal ideologies and philosophies. The chief Justice and the Deputy Chief Justice are hailed as liberals, Justice Ojwang and Tunoi as conservatives and Wanjala, Ndungu and Ibrahim as centralists. In addition, the judges bring in their experience from the Bench, Smokin Wanjala and Njoki Ndungu research, willy Mutunga research and activism and Nancy Barasa activism and management.

Justice Philip Tunoi
Given this line up, the public expectation of the Court is high. The Court's role as stipulated in the Constitution involves arbitrating over disputes arising out of presidential elections, determining appeals from the Court of Appeal, and to interpreting the constitutionality of issues arising from proceedings in subordinate courts. The current Court of Appeal as the final Court suffered from a reputation of conservatism and rigidity. The composition of the nominees to the Supreme Court can be seen as an invitation of the Court to expand the horizons of jurisprudence in its interpretation of the law. Whether the new breed of judges will inject the necessary activism and progressiveness in the Courts decisions is to yet to be seen.

Justice Jackton Ojwang
The significance of the Supreme Court also lies in the fact that it's the final resort of justice. Its formation offers Kenyans a new higher rank in the hierarchy of Courts where they can appeal for justice. For the first time also, the highest court will be occupied not by political appointees whose sense of justice may be skewed in favor of the appointing authority but by men and women whose integrity, credibility and competence has been tested and challenged in public and transparent vetting processes. When approved and appointed into their positions, the Judges will assume their duties knowing too well that they don't have to fear any authority or branch of government in dispensation of justice.  The future of legal justice in Kenya looks indeed very interesting.

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