The Ongoing Scrutiny of CJ Candidates In Kenya Is Long Overdue and Good for the Country.

06 May

The ongoing public scrutiny of shortlisted candidates for Chief Justice and Deputy Chief Justice is an exercise which is long overdue and good for the country. It is a  testament of how far we have come in recognizing the fact that transparency and accountability are not just words to be spat around without meaning. It is also one practical example of how gone are the days when the president handpicked and appointed people to these important offices without regard to qualification leading to the decay of institutions we must now revitalize and clean-up.

I must, however, say I was quite surprised the ghost of JM Kariuki came back to haunt one Justice Lee Muthoga who equally surprisingly had detailed recollection of names and information of this case he handled 40+ years ago. I think it was inappropriate to dig that far but having answered the questions, Justice Muthoga must have expected and deemed them not be other than the small grenades they are aimed at dashing his hopes of becoming the Chief Justice.

Be as it may be, we should nonetheless screen and appoint someone as Chief Justice who has the judicial temperament, vision and certainly positive reformist attributes to reform the judiciary, not a purist.

Justice Muthoga has not been the only victim of Judicial Service Commission (JSC)’s Abdulahi Ahmednasir, who has irritably albeit interestingly become a thorn in the flesh for these men and women who suddenly have found themselves forced to publicly explain the impossible: rulings without basis in law or fact.

Fending off sharp accusations from commissioner Ahmednasir that he was the “common denominator” in key cases Ahmednasir alleged were “fixed to serve State interests under the Moi regime” and the Court of Appeal and that the Court of Appeals where the justice now sits “dispenses justice on the basis of whims and bribery,” Justice Omollo struggled to maintain his calm but sought to inform the commission he was no man’s lap poodle: “I have earned my promotion not as a poodle of any individual,” the justice declared, “ I have never attached myself to any particular politician. My mind is not tunnelled.” The Justice lectured.

How is a mind “tunnelled,” you ask? Good question; my answer given the good justice’s response would be when a judge’s mind is either not working at all or if working doing so under the influence of cash and/or threat without regard to the law one is supposed to apply to reach an outcome desired by the one supplying the cash and/or threats or if applying the law, then doing so in a tortured manner so as to reach the outcome so desired by the one supplying the cash and/or threats.

Did Justice Omollo acquit himself well? I would say cautiously so. You will be hard put to find a single senior judge who served in the Moi era that was not forced one time or another to render a decision he or she otherwise would not have but for the connection of the case in some way with the Big Man.

Justice Samuel Bosire too, found himself invoking the same poodle defense in countering questions about handling the family law case involving the late lawyer S.M. Otieno in which he ruled in favor of Otieno’s family and against his widow, citing customary law which he still defended as having been the correct decision. Given this is the highlight of his grilling, one can conclude he has thus far had the better of the poodle defense therefore he may be that much closer to getting the nod.

The Reality TV saga goes but the final pick for the top post may be between these two justices, with Justice Kalpana Rawal looming above them in case neither is selected for reasons that surely would have to do with tribal considerations in which case Justice Rawal stands the next most plausible pick, if anything as a tribal compromise.

This is not to say the rest of the finalists are not fit to serve. They are but they cannot be selected for any number of reasons, not the least of which is my favorite and that is, they have not earned their stripes yet. I say this is my favorite because I truly believe in it and it is the same reason I maintain none of the presidential vying pack deserve to be elected other than Raila because they have not earned their stripes yet but Raila has has. I know a few of my friends this really annoys every time I say it but it is true and sometimes truth can be irritating or annoying. Ask any of the justices who are being grilled by JSC.

But that’s for another blog. Back to this one:

Notwithstanding my conclusion that either Justice Omollo or Justice Bosire is ahead of the pack and one of them will finish first, a viewer of Justice Omollo’s interview nonetheless posted the following opposite view to which I respond after the quote:”

“I got a chance to see the interview of Court of Appeal Judge Riaga Omollo on Citizen TV…This was a rare opportunity to see a man who was fronted by the ODM wing of Government, in particular PM Raila OdingaJustice Riaga Omollo was everything that i did not expected such a person to be. He appeared to me a very tired Judge, who has spent all his life in the at the bar. He did not have the vigor, the energy, the right kind of mindset that is needed during this crucial reform period. His demeanor was pathetic. This man disappointed me. This is a person who belongs to the old generation of people who are wasted. He does not deserve that position.

My response:

I have not seen the interview with Justice Omollo you saw on Citizen TV but I am fairly confident there is someone else who has seen it and has the exact opposite view of Justice Omollo than the one you portray, namely, that Justice Omollo is energetic, sharp, articulate and has full command of the English language and the language of law.

These are the qualities that led to his quiet rise to the top at the Judiciary where he remains today and ditto for being the preferred natural successor to Gicheru as head of the Supreme Court and judiciary other than Justice Bosire, by those analyzing the existing pool of candidates objectively.

He was certainly not “fronted” by Raila in the sense you use that word here to suggest something sinister about Raila and others  otherwise preferring Justice Omollo for the top seat at Judiciary. He was and still is one of the best candidates for the job.

The fact is, if it was strictly a question of merit, Justice Omolo would be an easy meritorious appointment to be our country’s Chief Justice. Ditto for Justice Bosire.

Unfortunately, however, tribal and slanted political considerations may sadly deny these fine jurists this opportunity to be our Chief Justice which they’re unquestionably  qualified to be so appointed.

Let’s hope not and certainly let’s hope the new Chief Justice appointed is a true reformist, intellectual force and visionary to take our judiciary to the next and best level of reliability, accountability and competence much the same as any of the best in Africa and the rest of the world for that matter.

Peace, Love and Unity.

Samuel N. Omwenga, Esq.

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Posted by on May 6, 2011 in Law


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