Judiciary Nominees: Tough to be a Reformist and a Performer!

Dr Willy Mutunga

We welcome the nominations of Dr Willy Mutunga and Ms Nancy Barasa to the posts of Chief Justice and Deputy Chief Justice respectively and commend the Judicial Service Commission (JSC) for the transparent manner in which the process was conducted. However, we would like to comment in general on the vetting process of the candidates and the public expectations on the nominees. 

As regards the vetting, praise was showered on the transparency of the process but forcefully too queries have arisen on disregard of respect to dignity of the candidates. This, however, was the first public scrutiny of candidates performed in the appointment of high ranking public officials in Kenya. Without a precedent to rely on, mistakes likely were made. It is not therefore, important to dwell on such mishaps, rather let us regard them as lessons learned in future vetting. On the other hand, the guest for transparency should not outweigh the need to handle the candidates with respect and dignity. Democratic principles prompted by the candid scrutiny also incorporate need for respect of candidates’ human rights.  The Constitution, after all, guarantees every person the right to have their dignity respected and protected. Humiliating questions that overzealously probe into candidate’s personal weaknesses and past job performance failures can offend respect of one’s dignity. In future, the JSC should endeavor to complement the interests for transparency, accountability with that of the respect for candidate’s dignity.

Ms Nancy Barasa

The decision by the PSC to forward only one name for each of the positions to the appointing authority was courageous given the perennial disagreement of the Two Coalition Principals and bickering of their parties’ Members of Parliament and officials. Any questions that may arise can only promote politicization of the process. Furthermore, we believe the PSC was within its Constitutional mandate as the Constitution is silent on the matter. The Constitution by default seemingly leaves the decision on the number of names to be forwarded to the discretion of the PSC. 

The nominees’ impeccable reformist and academic record are admirable and impeachable. Furthermore, being outsiders to the maligned judiciary, they strongly have the support of the public which views the judiciary as incompetent and rottenly corrupt. When appointed in their respective positions by the President and Prime Minister with approval of the Parliament, the nominees’ jobs will be cut for them. The public expects nothing less than a complete turnaround of the judiciary from its past reputation to a respected, competent, people sensitive and justice institution. Simply, their task is to reform and make the judiciary perform. We have no doubt that the two will do all they can to achieve this result. Nonetheless, we would like to sound a word of caution and advice to the nominees.

Firstly, the public will not measure your success according to your past credentials like the PSC was inclined to do, but on your performance in the job. The public knows too well their disappointment with people who were highly regarded as reformist in the past, especially politicians, but who became perfectionists in the same vices they were expected to combat. Judicial offices, because of their independence nature and tenure of office, may be different from political offices however the failure to perform is not normally inherently in the character of the offices but the strength of character of individuals occupying the offices. In other words, be strong and live up to your reformist character.

Secondly, being a reformist and shooting criticisms and contributions from the outside is different from a reformist shooting from within and having the duty to carry out the expected reforms. In this case, your dual roles require that you compliment your reformist zeal with performance enthusiasm. Don’t let the passion of one outweigh the other, otherwise the lath of the public will soon come falling on you like a tone of stones.

We wish you a speedy confirmation in your positions and good luck in your onerous tasks.