NAIROBI, Kenya, Aug 29 – The Judicial Service Commission will now interview all those who applied for the posts of Chief Justice, Deputy Chief Justice and a judge of the Supreme Court.
This follows a judgment delivered by the High Court on Monday morning that faulted the criteria the Commission used in short listing candidates on the basis of missing clearance certificates from the Kenya Revenue Authority, Higher Education Loans Board, the Directorate of Criminal Investigations, Ethics and Anti-Corruption Commission among others.
The Court also faulted the “irrational(ity),” behind short listing candidates who had applied for more than one of the posts for some and not for other posts yet the qualifications required were identical.
“I agree that short listing Mr David Waihiga for only one position when he applied for all three positions whose criteria for short listing is the same, does not add up. Without any reasonable, justifiable grounds, such a decision constitutes unreasonableness on the part of the Commission and I so find.”
Activist Makau Mutua, Supreme Court Judge Smokin Wanjala and former anti-graft czar Aaron Ringera will therefore now be among those interviewed for the top job of Chief Justice as will Andrew Kongani, David Wambura, Lucy Julius and the above referenced Waihiga.
Waihiga will now also be interviewed for the post of Deputy Chief Justice as will Isaac Rutenburg and Judith Wanjala.
He will now also be joined by Rutenburg, Wanjala and Faustine O. Mare in the race for a Supreme Court judge.
The aforementioned candidates had been knocked out at the short listing stage.
High Court judge George Odunga ruled that the decision by the Commission to knock out applicants based on missing clearance certificates which are not Constitutionally mandated, would deny Kenyans the chance to get the best man for the job.
“It is for the benefits of the applicants for whoever is eventually found to have bested the best ought to be the best of the best. Not only carries with him or her the confidence of Kenyans, but have self-confidence that he or she was deserving of the job and not that he or she only got the job because other probably more qualified applicants were unfairly locked out of the competition in order to pave way for his or her nomination and eventual appointment.”
Court of Appeal Judge GBM Kariuki will however not be among those interviewed after High Court Judge Roselyn Aburili declined to compel his short listing by the Judicial Service Commission.
In her ruling, Aburili explained that she could not compel the JSC to consider a candidate who never bothered to submit an application.
“The Commission cannot be asked to shortlist a candidate whose application is not before it. In this case, when he (Kariuki) was confronted with bottlenecks of delayed issuance of the Certificate of Good Conduct is when he sought to have the additional requirements declared unconstitutional. In my humble view, that is an afterthought which is bereft of good faith.”
She has also declined to find the Directorate of Criminal Investigations guilty of violating Kariuki’s right to a Certificate of Good Conduct.
Her reasons being that Kariuki demonstrated laxity in pursuing the certificate which he claimed the DCI denied him with the malicious intent of locking him out of the race for Chief Justice.
“On realising that there was some form of delay, and before the application deadline, could he not personally contact the DCI to establish the cause for delay? The applicant did not mention what efforts he or the Registrar of the Court of Appeal whom he had assigned to run errands on his behalf made between June 27 June and July 7 (application deadline) to obtain the certificate.”