Third suit challenges criteria of shortlisting judiciary candidates

Former chairperson of the Constitution of Kenya Reform Commission Yash Ghai addresses guests during the multi-stakeholder regional exchange on constitutional reforms at Stanley hotel on May 3, 2010. Prof Ghai wants information on how interviews of applicants of the judiciary top seats were conducted. PHOTO | PHOEBE OKALL | NATION MEDIA GROUP

What you need to know:

  • Rather than directly deal with the request for information, the JSC passed on the request to its lawyers, Njoroge Regeru and Company Advocates, who wrote to the two petitioners.
  • On behalf of the JSC, the lawyers further assert that “blanket disclosure of information is … neither practical nor desirable” as some of the information is private.
  • If the court finds that the JSC has a duty to make public the information it holds on how the shortlist was done, it may order that all such information be released to the public.

The process of appointing Kenya’s next chief justice came under more pressure last week following the filing of another suit that seeks information on the process that the Judicial Service Commission had used in deriving its shortlist of candidates for this position.

Former chairperson of the Constitution of Kenya Reform Commission, Prof Yash Ghai, teamed up with the executive director of the Kenyan Section of the International Commission of Jurists, Mr Samuel Mohochi, in a filing under article 35 of the Constitution which provides a right to information in the hands of public authorities.

Rather than directly deal with the request for information, the JSC passed on the request to its lawyers, Njoroge Regeru and Company Advocates, who wrote to the two petitioners.

In the letter, which the Sunday Nation has seen, the law firm points out the legal criteria for assessing the applications received by the JSC which it claims the Judiciary body complied with when it was carrying out the assessment of the applications received.

The letter asserts that “the reasons particular candidates were not shortlisted were duly communicated to each of them in writing” and that “the JSC is not at liberty to disclose those reasons to third parties, as such disclosure may infringe on the constitutional rights of the applicants including the right to privacy”.

On behalf of the JSC, the lawyers further assert that “blanket disclosure of information is … neither practical nor desirable” as some of the information is private.

When the case came up for mention before Justice Muthoga Mureithi, he referred it to Justice George Odunga who is already hearing the two separate cases that have been filed challenging the recruitment of the next Chief Justice.

Justice Odunga directed that this new suit will be heard alongside the two that had already been consolidated and that the hearing will start in the new week.

DIVULGING INFORMATION

Interviews for the position of CJ will start on August 29.

The High Court has so far declined to give an order preventing the interviews from proceeding on the set date because it plans to hear and dispose of these cases ahead of the date for the interview.

The Sunday Nation has established that while the JSC claims that it has furnished the candidates who failed to make the shortlist with the reasons why they were not shortlisted, US-based Prof Makau Mutua says that he has not received any such communication from the JSC.

Legal experts have pointed out that it is anomalous for the JSC to have instructed a lawyer to deal with its obligation to provide information to the applicants, Prof Ghai and Mr Mohochi, reason that this duty is in the hands of the JSC and should not be delegated to a lawyer.

If the court finds that the JSC has a duty to make public the information it holds on how the shortlist was done, it may order that all such information be released to the public.

Legal experts point out that, ultimately, any finding of lapses on the part of the JSC in providing information is unlikely to invalidate the ongoing process.