10 Things We Learned From The JSC Interviews

Members of the Judicial Service Commisision (JSC) with the former Chief Justice, Dr Willy Mutunga.

Here at Obiter Dicter, we pick out 10 things that really stood out from the recent interviews conducted by the Judicial Service Commission (JSC) to fill out the vacant position of Chief Justice (in no particular order). We shall, of course, focus on the last week’s interviews, purely for the entertainment value:

Members of the Judicial Service Commisision (JSC) with the former Chief Justice, Dr Willy Mutunga.
Members of the Judicial Service Commission (JSC) with the former Chief Justice, Dr. Willy Mutunga. Image sourced from the Judiciary website (http://www.judiciary.go.ke/portal/blog/post/cj-swears-in-two-jsc-commissioners)
  1. Why would anyone want to do this?

Picture this, you’ve got a nice cushy job somewhere in the public service; perhaps some senior honcho in some senior politician’s office. Suddenly, those angel-devil mini-versions of you we only see on movies perched on your shoulder are engaged in that conversation.

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“You have to apply.”

“No, are you crazy? You’ll be eviscerated.”

“No, seriously, give it a shot.”

  1. “You asked us to reconsider? Yes, well, here is us, reconsidering…”

The decision of Odunga J in Trusted Society of Human Rights Alliance & 3 others v Judicial Service Commission & another [2016] eKLR asked the JSC to reconsider the candidates who were not shortlisted. Fair enough. But what passed for reconsidering had all the hallmarks of very little consideration. It was as if the JSC was purposely showing the world this is why we didn’t give these guys a chance last time out, with questions such as: “Did you submit your wealth declaration form? All you had to do was just download and fill it.”

This is how I imagine the Commissioners were….reconsidering

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  1. To dare is to do

Tottenham Hotspur have an interesting motto: audere est facere (quite literally: to dare is to do). Well, the interviews have taught us that there is no limit to daring, and to doing. Take Paul Kongani Udoto, for example. The good fellow is pursuing his postgraduate diploma at every legal practitioner’s favourite institution (the Kenya School of Law). Fair play to him. He’s not even sat in some freezing hall in CUEA looking at the Commercial Transactions paper and wondered…

But he wants to be Chief Justice.

The fellow dusted up his Constitution, skipped to Article 166(3), called it some rather unsavoury names and applied for the job. This is what Owaahh would call badassitude. And thanks to Odunga J’s decision above, he got a chance with the JSC. When asked why he applied, he admitted it was to prove a point. See? Badassitude.

  1. “Are you in a cartel?”

Of course it wouldn’t be an interview without asking the quintessential Kenyan interview question. The five words that can break you, with particular emphasis on the cartel bit. “Cartel” is undoubtedly the most dangerous word in Kenya. It’s like “Open Sesame”, the path to untold riches, but with the peril of being blamed for everything: from the price of sugar to blocks on twitter to why your significant other blue-ticked you. So, dear reader, are you in a cartel?

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Pablo Escobar Gaviria, King of All Cartels….asking you if you want to join his…
  1. The past will haunt you

Never forget your past, and where possible, try to airbrush it. Take Justice Ringera, for example, there was the lawsuit he filed against the Law Society of Kenya in the 1990s ostensibly to protect them from the wrath of the dictatorship, which he later blamed on “being used” and inexperience (despite describing himself barely 10 seconds ago as a prominent legal practitioner).

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Or we could revisit the botched “radical surgery” with no traces of due process whatsoever, which he blamed on a mole: “There were only two people in possession of the said list: myself and the Chief Justice, and I didn’t leak it. Look, I’m not saying it’s him, but what I’m saying is that it wasn’t me.”

There was Amb. Wambura and his stint at the Electoral Commission of Kenya. There’s not much anyone can say about that, except…

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Not to mention Prof. Makau Mutua’s itchy twitter fingers on his love-hate relationship with the President. And being the good patriotic Kenyans we are, we should ask why he doesn’t pay taxes here. Does an ID card expire? What does he think about “gayism”?

  1. “What is your legal philosophy?”

For large swathes of time in the interview process, it felt like I’d stepped into a time machine to land into my Third Year Jurisprudence class, still in pyjamas and a steaming coffee mug to get me through the motions of an 8 a.m. lecture.

“Are you a positivist?”

“Are you a legal plumber?”

“What is a normative derivative?”

“What is your legal philosophy?”

I’m extremely distrusting of anyone who uses the word philosophy, which I blame on my past experiences as a United fan. The word philosophy triggers some very bad memories of sideways passing and general cluelessness.

  1. “Uko Facebook? Uko Twitter?”

It’s the age of social media and the former Chief Justice set some very high standards on that front: swiping up and down on his iPad during the presidential election petition, tweeting in Sheng, selfies and bants with Juliani. Naturally, it became an interview question, from the “never ever” of Mbogholi J, to Prof Makau Mutua’s very itchy twitter fingers. Did anyone ask how it’d go down in the DM? Oh, and there was Ms Lucy Wanja Julius who wanted to ban the press from covering proceedings in courtrooms. In the age of Periscope and Snapchat?

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  1. There will be was blood

The interview process was rough. The Commissioners were not smiling. They were like sharks and they did what sharks do when they smell blood.

“Do you want to bring us failure in the Judiciary like you did in the ECK?” Prof Ojienda SC asking Amb. Wambura.

“You served in the ECK? And the President gave you a medal for that?” Warsame JA to Amb. Wambura again.

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Makes me wonder why anyone would want to subject themselves to this.

  1. Novel interview techniques (and even funnier answers)

Word association is an actual interview technique and not some stylistic device introduced in Skyfall to portray James Bond as a functional alcoholic sociopath with a profound disdain for authority and all its forms. And do you know the Governor of Isiolo? Or Nyamira?

But the most interesting answers came from Ms Lucy Wanja Julius, who likened herself to David (after not being shortlisted), because five stones dropped the Goliath of the nefarious cartel. A person who is very religious, has revelations but has no qualms about using politicians’ secrets to settle election disputes. This is EXACTLY the Chief Justice we want.

10. Banter

Whoever knew that our learned Attorney-General, Prof Githu Muigai, was an excellent proponent of banter in all its forms? Sample this…

“You know, some of these people don’t believe I’m educated…”

“Some modest lawyers who describe themselves as constitutional lawyers in the newspapers…”

This is how I used to look forward to the AG’s segment. It was…LIT!

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What happens next?

As per paragraphs 14 and 15 of the First Schedule to the Judicial Service Act (No 1 of 2011) (“the Act”), the JSC has seven days after the conclusion of the interviews to think hard about its decision and in the words of the statute, “Each member shall vote according to that member’s personal assessment of the applicants’ qualifications” (like in Survivor, where the tribe speaks), only that this time the person with the most votes (i.e “…three or more affirmative votes”), wins. Within seven days, the Secretary to the Commission will notify each applicant of the JSC’s decision, by phone and in writing.

Thereafter, pursuant to section 30(3) of the Act, the Secretary shall within 3 days forward the names of three qualified persons for appointment by the President. The President shall, within 14 days of receipt of the names, pick one and forward it for approval to the National Assembly, who will vet and consider the person within 21 days of receipt of the names from the President. If all goes well, the President will appoint a new Chief Justice.

Where Parliament does not approve, the Speaker shall, within 3 days, communicate the decision of the House to the President and ask for another name within 7 days. If Parliament doesn’t like any of the names, the panel is reconstituted and the interview process begins afresh. Let’s hope it doesn’t get that far.

 

 

Martin Maitha

Mr. Maitha is an Advocate of the High Court of Kenya. He specialises in legal research and writing, and has a keen interest in corporate, commercial, media and ICT law.

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About Martin Maitha 16 Articles
Mr. Maitha is an Advocate of the High Court of Kenya. He specialises in legal research and writing, and has a keen interest in corporate, commercial, media and ICT law.