Why is JSC a rogue institution?
In September 2016, I was interviewed by the Judicial Service Commission for the office of the Chief Justice and President of the Supreme Court of the Republic of Kenya. I wasnt offered the job. Thats the only substantive official position Ive sought in Kenya since I became a lawyer decades ago. I dont count my short tenure as the chair of the truth commission task force in 2003 as a real job. Ive been blessed with an immensely successful career as a legal academic in the United States. The CJ job wouldve given me a chance to serve Kenya. I didnt think the JSC was transparent in choosing the CJ nominee in 2016. Thats why I am revisiting the matter. I need to clear the air on several issues. First, I wasnt seeking the CJ job as a capstone in my legal career. I am fundamentally an academic, but the job wouldve been a great professional detour to give back to the country of my birth. I wouldve returned to the academy at the conclusion of my tour of duty. Second, the job wouldve been personally constraining and financially unattractive. I didnt seek it for the money or perks. I dont make this point to be pompous, but to complete the record. I wouldve done it for love of country. I thought CJ Willy Mutunga had laid a historic foundation on which we wouldve done irreversible judicial transformation. For years, folks questioned why I didnt go back to Kenya and participate in the challenges, opportunities, joys and sorrows that my compatriots there live with every day. My answer was always the same  I have been deeply involved in the countrys life, in spite of the distance. So, geography hasnt been a big barrier to me. I am a global citizen who contributes from anywhere, any time. I believe my record speaks for itself. Grading scheme  However, I thought being on the ground and working directly with the judiciary was a calling. As it turned out, the rogue JSC didnt see it that way. What was supposed be an interview to recruit me turned into an ugly and nasty inquisition. Initially, as is well known, the JSC threw up artificial barriers to lock me out of the shortlist. It was only pursuant to a Katiba Institute suit that Judge George Odunga ordered the JSC to drop its petty frivolities and interview me. Once on stage, former AG Githu Muigai did everything to discredit me. He was joined in that ignoble charade by several commissioners. The public was aghast. Particularly appalling were three lines of questioning. Clearly an unconstitutional question. An ignoramuss absurdity. This last one took the cup. I was OK and took all of it in my stride. Be that as it may, the interviews concluded and Justice David Maraga was announced the CJ nominee. Mr Maraga is a good and honourable man. I paid him a courtesy call later and we had an enjoyable working visit. Despite several efforts by civil society groups, the JSC refused to make public the grading scheme and scores for the 2016 CJ interviews. I believed by the failure to abide by the predicates of transparency  which the Constitution unequivocally commands  the JSC was engaged in an illegality. This piggish opacity by the JSC would damage the credibility of the nominees, including the CJ. It also absolutely makes a mockery of the publicly televised interviews. Candidate scores  Thats why I decided to demand that the JSC release all the 2016 interview scores for every candidate by every single JSC commissioner. In a strange response, the JSC argued that doing so would prejudice the applicants. By submitting to publicly conducted interviews, both the applicants and the commissioners give up any expectation of the right of privacy as to the outcome of the interviews. In fact, the only way to hold the JSC and its individual commissioners accountable  and to make sure theres no corruption or rigging of the scoring  is to make the marks public. This would ensure full transparency. Thats why I and Katiba Institute have sued the JSC demanding the public release all candidate scores from the 2016 and 2021 CJ and judge interviews by every JSC commissioner. We wanted the JSC restrained from nominating the CJ and Supreme Court judge candidates until it released all the scores. But they rushed to nominate them to defeat our suit. However, our suit will continue until the JSC makes public what its hiding. This isnt about CJ Martha Koome. My suit preceded her nomination by the JSC. We are sunk as a country if the courts and the JSC  the guardians of legality  cant uphold the Constitution and the rule of law.