HOW TO BECOME A JUDGE OF THE HIGH COURT OF KENYA

SATURDAY NATION
NAIROBI, KENYA
By Peter Mwaura
April 10 2009

There are 24 vacancies for judges in Kenya and, unless the appointment mode is changed the following are the qualifications. First, the jobs are not advertised, so you cannot apply. Appointments are by invitation only.

Perhaps you can talk to your MP, arrange for a mbuzi party, or somehow worm your way to the attention of the Judicial Service Commission. Invitation is possible only for people who have made themselves known.

The vacancies include those of the Court of Appeal, but the focus here is judges of the High Court. There is an establishment of 85 posts for judges, according to the strategic plan for the next fours years, launched by Chief Justice Evan Gicheru in March.

SIXTY-ONE HAVE ALREADY BEEN filled, including those taken by the five High Court judges appointed last week, triggering the dramatic resignation in protest of Justice minister Martha Karua.

To succeed in bagging one of the posts, your socio-political connections must be better than the competition. Besides, you have to be an advocate of not less than seven years’ standing, or a judge in a Commonwealth country.

This is the only qualification the Constitution requires. The rest is left to the Judicial Service Commission, which is not subject “to the direction or control of any other person or authority,” according to the Constitution. The commission is supposed to make its own rules.

The commission will claim judges are selected on merit, but then, merit is almost always wholly subjective. Moreover, the commission has not publicly spelt out its concept of merit, or what evidence it needs to show a candidate has merit.

As one judge once said, no word is more used or abused in the appointment of judges than merit. Without a clear articulation of what constitutes merit, each commissioner can construct his or her own concept. And because of the closed nature of the appointment process, we will never know what it is.

According to the Constitution, the judges are appointed by the president, “acting in accordance with the advice of the Judicial Service Commission”. The CJ, who is the chairman, is the most powerful member of the commission. Others are the attorney-general, two judges and the Public Service Commission chairman, all of whom are appointed by the president.

Lobbying or knowing the right people, or the commissioners, is the only process guaranteed to bring to the commission’s attention information about your suitability for appointment. One should not be shy about pulling the strings. The commission is accustomed to dealing with approaches of this kind.

Besides your paper qualifications, your suitability is determined on the strength of support from the political community, or friends in high places. If you think lobbying is below your dignity, then you are not cut to be a judge in Kenya. No candidate with active supporters in the corridors of power have never failed to make it to the bench. If your qualities are not well-known, you will never make it.

The power to select judges is vested in a tiny brotherhood and powerful special-interest and political groups. Naturally, the chances of picking the wrong candidate are always present.

AT THE SAME TIME, THERE IS LITTLE empirical evidence to suggest that the judges so appointed are always inferior. Some of them have turned out to be highly competent, impartial, ethical, scholarly and compassionate.

Whatever the result of the recruitment, political or social connections are an absolute must in getting considered. This is not peculiar to Kenya. Politics cannot be completely removed from the appointments, nor is it desirable that it should be, given our constitutional arrangement and current government system.

And nobody should feel bad about that. Universally, there is no system of appointing judges that is immune from politics. No country has discovered a system that does not raise controversy or throw up some bad judges. But this is not to say that the Judicial Service Commission should not be more transparent.

gigirimwaura@yahoo.com