Following the decision, lawyer Sam Mohochi and Prof Yash Ghai filed a suit asking the court that all candidates be interviewed, unless it could explain why some were disqualified.
In its judgment, the High Court directed the commission to reconsider the applicants it had rejected and to communicate its decision, particularly where adverse, to the affected parties. It also prohibited the commisison from recommending to the President names for appointment without adhering to the court’s orders.
The JSC thereafter announced that it would now interview all the candidates that it had previously excluded, a decision that led to the inclusion of such obviously unqualified candidates as Paul Kongani, a 39-year-old law student who is also a carpenter.
This decision also restored three more controversial candidates including Justice Jackton Ojwang, who, as a serving judge of the Supreme Court, would argue that he should have been shortlisted to begin with, and the former chair of the Kenya Anti-Corruption Commission, Justice Aaron Ringera, who as a senior figure in the law and politics of the country, would also feel he deserved a place in the shortlist.
The third candidate in this category was US-based law professor, Makau Mutua, whom, it turned out, was not shortlisted because he had not furnished the JSC with a certificate of good conduct from the Criminal Investigation Department. Prof Mutua was to explain during the interview that the CID would not issue him with a certificate because they needed to first take his fingerprints, something that could not be done within the limited time available, since he is resident in the US. It is as though the JSC used the interview of these three candidates to demonstrate that it was justified not to have shortlisted them in the first place. Whoever the JSC picks as the country’s next Chief Justice, it is the interviews of the candidates that the JSC had initially excluded that will provide the highlights of the recruitment process.
While Justice Ojwang and Prof Mutua were subjected to some unfriendly questioning, the interview against Justice Ringera proceeded with reasonable civility, during which the JSC was able to explore the leading role that the retired judge had played while still a lawyer in private practice, in resisting democratic reforms in the country. Justice Ringera blamed his past errors of judgment on the follies of youth and also on senior figures in the profession who he said had manipulated him to do what he did. He readily apologised, promising that he would do better if he was given another chance.
This was not the first time that Justice Ringera was seeking to become Chief Justice, having failed to make the shortlist in the 2011 interviews as well. It would be fair to say that the JSC is unlikely to recommend him for Chief Justice, having so easily discredited Justice Ringera on account of this past history.
On his part, Justice Ojwang fell for what appeared like a deliberate plan on the part of the JSC to aggravate and demean him. During questioning over his role in the controversies that rocked the Supreme Court over the retirement age saga that involved fellow Supreme Court justices Kalpana Rawal and Philip Tunoi, Justice Ojwang lost his temper, leading to a furious slanging match with a member of the JSC. The interview revealed the bitterness that characterises internal relationships in the Judiciary, and which is attributable to the opposing positions a number of judges took on the retirement question.
It is surprising that Justice Ojwang submitted himself to an interview conducted by the JSC, a body that only recently made a formal finding that he had been involved in misconduct in relation to his role in the retirement saga. It was manifest that the JSC intended to give Prof Mutua the same rough treatment it had given Justice Ringera a day before, and which it would give Justice Ojwang a day after. In particular, Attorney General Githu Muigai attempted some one-upmanship on Prof Mutua, although it is doubtful to conclude that he succeeded.
In the end, Prof Mutua’s interview was a masterclass, with the Buffalo Law School professor giving the JSC a tutorial on several of the complex legal issues that they explored with him. In the eyes of many that watched the interviews, Prof Mutua was by far the best candidate, and on the basis of what happened on that day, he would be an easy choice for the next Chief Justice.
However, the JSC is likely to regard adversely Prof Mutua’s position as a conscientious objector to the declaration of Uhuru Kenyatta as the president of Kenya. The JSC explored his views on this subject at great length. They also laid a number traps in Prof Mutua’s way, including regarding his views on equality and non-discrimination in the context of sexuality rights, and his views on abortion, and the death penalty. They even asked him about his religious beliefs, thus erecting a religious test against him. Although some would disagree with him, Prof Mutua convincingly supported his views on these issues.
Prof Mutua is likely to have a profound effect on the whole recruitment process. When everything is considered, many people felt that he earned an interview as of right, even though it took a court order for him to be interviewed. Having done so well in the interview, his performance now makes the JSC look capricious for not having shortlisted him to begin with. If the JSC does not give him the job, the body will come under pressure to demonstrate that whoever it settles on was better than Prof Mutua.
In that case, the divided JSC members would be forced to close ranks and compromise on a candidate whose selection they can all defend. The effect of Prof Mutua on the interview process is that whatever the JSC decides on his candidature, he has raised the bar by which the JSC will make its decision on the most suitable candidate.
Of course, there are also the six originally shortlisted candidates whom the JSC will have to consider. The JSC was dismissive of Justices Mbogholi Msagha and Roselyn Nambuye. While Justice Wanjala had a good ride and performed well among this category of applicants, he is an insider and a member of the Supreme Court, a court that is currently affected by a considerable amount of internal toxicity. In the context of the poisoned atmosphere in the Supreme Court, Justice Wanjala would not be a straight forward choice. Justice Wanjala together with Justice Mohammed Ibrahim belong to one camp and Justice Ojwang and Njoki Ndungu to the other. The JSC would have to consider the effect that would be created in the internal atmosphere of the Supreme Court, if it chose either of Justice Wanjala or Justice Ojwang.
Of the remaining candidates, Justice Alnashir Visram wrote himself off when he was awarded a large amount of money as damages for defamation, a fact that compounds his image as a reactionary.
The last two candidates Justice David Maraga and lawyer Nzamba Kitonga have sailed quietly through the interviews. As a compromise candidate, and given his solid professional background, Mr Kitonga would be perfect. The private legal profession, which greatly admires Mr Kitonga, would be appeased, and being the only other “outsider” applicant besides Prof Mutua, his selection would atone for the controversies that accompanied the shortlisting. There is likely to be a backlash if the JSC does not select Prof Mutua as Chief Justice. The only candidate the choice of whom would avoid such a backlash is Mr Kitonga. This is because besides Prof Mutua, he is the only credible outsider that the JSC interviewed. If the JSC were to settle on an internal compromise candidate, it might be Justice Maraga, whose genial approach raises the least resistance in a divided Judiciary.