New Chief Justice Has a Very Big Task Ahead

13 May 2011

editorial

Nairobi — After two weeks of vigorous and vibrant interviews, the Judicial Service Commission finally nominated lawyers Willy Mutunga and Nancy Baraza for the positions of Chief Justice and Deputy Chief Justice respectively.

This is a milestone in the country’s reform agenda that climaxed with the enactment of a new Constitution last August.

One, for the first time in the history of this country, the chief justice is being appointed through a competitive process. Previously, the position was handed out at will by the Executive and, with time, created an unhealthy symbiotic relationship that ended up destroying the Judiciary.

Secondly, the Chief Justice and the Deputy have the singular challenge of cleaning, revitalising and transforming the Judiciary from near-decay.

Third, and significantly, the Chief Justice and the Deputy are the cornerstone for the implementation of the new Constitution, whose high-point is expanded civil liberties, inclusiveness and citizen participation in governance.

Several provisions in the Constitution are quite grey and will have to be interpreted by the Supreme Court, which is to be headed by the CJ.

Other courts, too, will be required not only to interpret the new laws but make rulings that set precedents for the future.

Such responsibility underlines the urgency of a reformed and progressive judicial system.

And that explains why the Judiciary was the first casualty in the new order, with the incumbent Chief Justice forced out of office six months after promulgation of the new Constitution and judges and magistrates compelled to go through a vetting process soon thereafter.

The two nominees have their job clearly cut out. The Judiciary is notorious for corruption, sleaze, incompetence and conservatism. Case backlog, technological backwardness and miscarriage of justice came to define the court system.

The lords of impunity

Granted, turning around such entrenched rot is a Herculean task. The lords of corruption and impunity will not go to sleep because of new arrivals at the head of the bench.

At any rate, the nominees are outsiders who have never sat at the bench, therefore, they lack insider knowledge of the intrigues and goings-on there. Moreover, hostility to outsiders is inevitable, particularly, after shining at the same interview where veterans flunked.

Not only that, there are several other vested interests outside the Judiciary that will put obstacles at every stage of the journey.

Thus, the bigger challenge is for the nominees to be ready to carry through the reform agenda without flinching or looking back. They must quickly reconstitute the Judiciary and keenly monitor and help in the implementation of the new Constitution.

We are alive, however, to the fact that the process is not over yet. The names of the nominees will be taken to President Kibaki and Prime Minister Raila Odinga for consideration, who in turn, will send them to Parliament for vetting and approval before appointment by the principals.

Anything can happen at this stage, considering that questions have emerged whether or not the JSC was right to give single names for each of the positions, hence tying the hands of the principals.

In the final analysis, the country has reason to be hopeful that the change it yearned for is beginning to take shape.

AllAfrica – All the Time