Key Issue in Hiring for Judiciary Should Be Integrity – Ex-South Africa CJ

Murithi Mutiga

11 June 2011

Nairobi — The reforms being contemplated in the Kenyan judiciary are strikingly similar to those enacted in post-apartheid South Africa.

There had been widespread calls for reform of that country’s judiciary in the 1990s with bodies such as the Truth Justice and Reconciliation Commission criticising the institution for failing to take a stand against the excesses of the minority government.

After a new constitution was endorsed in 1994, there were wholesale personnel changes in the upper echelons of the judiciary, and an independent Judicial Service Commission was set up to oversee the appointment of new judges.

Like Kenya, South Africa turned to a man who had no prior experience as a judge and who made a name representing political prisoners to spearhead reforms in the judiciary.

Justice Arthur Chaskalson is widely regarded as one of the continent’s greatest chief justices.

He cut his teeth as a defence lawyer for victims of the apartheid regime in the 1960s, earning a name as one of a number of lawyers that were willing to take up briefs for the African National Congress leaders.

Mr Chaskalson was on the team that defended Nelson Mandela and nine other anti-apartheid campaigners in the famous 1963 Rivonia Trial.

The legal team representing Mr Mandela faced formidable odds but succeeded in turning the focus from their defendants and in making the proceedings a trial on the injustices of apartheid.

They also managed to save the ANC figures from the death penalty through a well-crafted strategy which included testimony by author Alan Paton, who, with great foresight, warned that one day the apartheid regime would need to negotiate with the leaders of the black majority, and it would be folly to end their lives.

Mr Chaskalson later became a human rights lawyer and was one of the founders of the Legal Resource Centre which seeks to use the law to promote justice and human rights in South Africa.

In an interview with the Sunday Nation, Justice Chaskalson was reluctant to prescribe what might be best for Kenya as it takes up the challenge of reforming the judiciary.

But he was willing to speak about his experience during the historic transition from the apartheid era to the new South Africa and addressed a number of issues that have animated public debate in Kenya over the best persons to lead the judiciary.

He said the notion that a good chief justice needs to have a background as a judge is not valid.

“There are many examples of individuals that have excelled as chief justice without having previously been judges,” he said.

“One thinks of Earl Warren in the US… In Australia there was Chief Justice Garfield Barwick, who, before becoming a widely respected and long-serving Chief Justice, had been a lawyer and politician.

“There are many other examples, including in the UK where the Lord Chancellor often has not had prior judicial experience.”

So what qualities should one look for in a chief justice?

Justice Chaskalson argues that those vetting nominees should consider who the best candidate is and ask whether that person will command the respect of the public.

Justice Chaskalson and Dr Willy Mutunga, the nominee to head the Kenyan judiciary, share a similar background as lawyers in private practice who challenged the excesses of a repressive regime. They also have similar civil society backgrounds.

Where Justice Chaskalson spearheaded the formation of the Legal Resource Centre, early leaders of the Kenya Human Rights Commission, including Dr Mutunga, Prof Makau Mutua and Maina Kiai in Kenya helped form Kituo Cha Sheria, a public law institute credited with playing a significant role in the early civic education efforts to popularise the need for constitutional reforms.

Justice Chaskalson argues that the background of a chief justice does not necessarily mean one would not display independence while in office.

“There is a difference between background and bias,” he says.

“All of us are influenced to some extent by our backgrounds, and this is true of all judges in all courts around the world. The key is whether the judges will do their job with integrity and ability.”

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