A member of the JSC, lawyer Ahmednassir Abdullahi, told the Star that they are yet to hold the initial meeting to plot the next course of action following the climb-down by the President on the judicial nominees.
The President had on Tuesday announced that he had realised that it was beneficial to involve the JSC in the recruitment of the CJ. He had previously ignored all advice to involve the commission. “We have not met so far and therefore we have not begun the procedures,” said Ahmednassir who represents the Law Society of Kenya at the JSC. Other members include outgoing CJ Evan Gicheru, Registrar Lydia Ochode, Prof Christine Mango and Bishop Anthony Muheria.
Others are outgoing AG Amos Wako, Florence Mwangangi, Justice Isaac Lenaola, Justice Riaga Omollo, Emily Omide and Titus Gatere. When it eventually meets, the JSC will put in place procedures for the recruitment of a CJ, procedures which must meet the high threshold of people’s involvement, transparency and equality.
They will most certainly include advertisement, open application, publication of applicants and vetting by the public through professional bodies and other interest groups.
Before that time and according to the Commission for implementation of the constitution, all administrative duties of the CJ will be handled by the JSC since there is no deputy CJ yet.
CIC through its chair Charles Nyachae has argued that the JSC is ably placed under the spirit of the new constitution to undertake such roles and not an acting CJ as widely suggested by various entities.
The JSC is charged under Article 172 of the constitution to promote and facilitate the independence and accountability of the judiciary and efficient, effective and transparent administration of justice. “Pending the substantive appointment, these functions will be carried out administratively within the judiciary, under the guidance of the JSC in the discharge of its general mandate under Article 172,” Nyachae said.
Nyachae says that in discharge of its mandate, the JSC will “no doubt” be guided by the letter and spirit of the constitution including avoidance of any actual, potential and perceived conflict of interest.
Under the new constitution and just like in the old one, the CJ wields more symbolic and administrative roles. Article 161 (2) (a) designates him as the “head of the judiciary.” Article 163 (1) (a) designates him as the president of the Supreme Court, the country’s highest court.
The only other role of CJ mentioned in the constitution is to assign judges to cases raising substantial questions of the law as provided for in Article 165 (4).
However, the Judicial Service Bill, 2011 which was passed by parliament on Wednesday gives a general function for the CJ and three distinct functions.
Clause 5 (1) says that as the head of the judiciary and the president of the Supreme Court, the CJ “shall be the link between the judiciary and the other arms of the government.
Of the three roles listed in the Bill, one is to assign duties to the deputy CJ, the president of the court of appeal, the principal judge of the high court and the chief registrar of the judiciary. Another is to give an annual report to the nation on the state of the judiciary and administration of justice.
The final role is to “exercise general direction and control over the judiciary” which largely entails administrative role. Although various players among them the civil society and the justice minister have called for appointment of acting CJ, the views of CIC are very paramount because it is the body specifically created for purposes of implementing and guiding the implementation process.
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