My three-year term representing lawyers at the Judicial Service Commission (JSC) has been exceptionally fulfilling and extremely challenging.
Fulfilling because I saw how a dedicated team with the right vision and commitment could transform an institution that was hitherto owned and run by a motley unholy alliance of lawyers, conniving judges, politicians and pimping conmen. Challenging because it has taken its toll at a personal level.
When I was elected to this position three years ago, there were 17 strong candidates, and I won with 50 per cent of the vote. I was elected despite strong resistance from State organs, a section of judges and strong lobbying by wealthy Kanu lawyers.
I was against parliamentary vetting. This was because the Constitution does not allow it. The JSC is the only commission where the majority of its members are elected by the constituencies they represent. The Constitution allows vetting for only the two members appointed by the President.
My vetting was a torturous process. I was a marked man. A number of senior Kanu lawyers and their surrogate judges pulled strings to ensure that I didn’t pass. They flooded Parliament with petitions that I should not be confirmed. Strangely the geezer lawyer behind the entire scheme didn’t author a single letter. He used what he fondly calls “launcher law firms”. He lobbied MPs heavily.
The House committee asked me all kinds of questions touching on drug trafficking to why I was allegedly holding billions of shillings in my client account for Somali pirates.
I found most of these questions quite ridiculous. But I later got to know who instructed some Members of Parliament to pursue this line of interrogation. I thought that if they really wanted to know the truth, the Central Bank could supply them with the most accurate information.
I came to learn later that one of the security agencies that normally undertakes background checks submitted a detailed three-page report. In the report, the agency alleged that I held, in my client account, billions belonging to known drug traffickers and Somali pirates. It also made a number of allegations touching on my person that were simply unbelievable and quite offensive.
ATTACK WAS PERSONAL
The most disgusting of the allegations touched on my wife. According to the report, my wife had fled the country and relocated to the US due to violent abuse on my part, and that I was a wife beater unsuitable to serve on the JSC.
Fortunately, some members of the committee and third parties who saw the report vouched that, indeed, I was happily married, and my wife had just given birth to twin daughters two months before my vetting. Three defining features of my tenure need a bit of elaboration.
The first was the recruitment of the chief justice. Kenya is the only country in the world that recruits its chief justice in a transparent manner. I personally knew the judges who were shortlisted for the position of CJ. The only person that I had not met before was Dr Willy Mutunga. I was, however, familiar with his history in the struggle and his scholarly writing.
My approach to the interviews was simple. I collected the historic and controversial judgments by the candidates.
I studied the same in great depth. I solicited information from lawyers on a given candidate. I unearthed their properties, farms and houses. I made copies of the Ndung’u Land Commission [report]. I had a credible dossier on the corrupt dealings of some candidates.
I then asked them direct questions. Many apologists of the old order have endlessly accused me of being rough and unmannerly in the interviews. Most are lawyers and others orphaned by the process. I tell them to go to hell! It would have been blasphemous to entrust the new Judiciary to Kanu zealots of yesteryears.
But was I biased against the Kanu judges? I was ideologically and philosophically biased. It is only natural. When you carry the grievances of an entire nation against the Judiciary on your shoulders, you cannot pretend to be neutral in a historic process that weighs in the balance their acts of commission and omission.
With hindsight, I think the judges were utterly naïve. How, for a moment, they thought they could pass public scrutiny of their records is simply beyond my comprehension. They failed the easiest of tests, which was an audit of their record as judges as reflected in their past decisions. If I had interrogated them on the damaging intelligence dossier I had, some would probably have had a cardiac arrest!
The second highlight is the removal of Nancy Baraza and Gladys Shollei. Barasa was involved in some altercation at a shopping mall. JSC, after investigation, was convinced that the matter raised troubling issues. Shollei, on the other hand, was accused of a litany of grave financial impropriety and was sacked by the JSC.
I think Baraza conducted herself with class. Despite her removal and the excruciating nature of trial, she never lost her head. Second, the political elite from her community acted with commendable restraint. Kenyans were not subjected to the tribal cry that “our daughter is being finished”.
The Shollei saga became a direct confrontation between the Executive and the JSC. I was personally warned that I had crossed a red line and would bear the consequences if Shollei was dismissed. It took [on] huge political overtones.
The reason was simple. With an annual budget of Sh16 billion and a massive 100 per cent increase in the employees of the Judiciary there are those in the political elite who saw the Judiciary as a fattened cow they would endlessly feast on.
My third experience relates to the importance of the JSC, which has 11 members. Five are judges. Four are presidential appointees. Only two who represent the law society are independent members.
Many people falsely make the unfair accusation that I own and run the JSC single-handedly. The most powerful member of the commission is the CJ. After that, other members are equal, although a lot depends on one’s foresight, character, vision and history.
If the government wants to manipulate the JSC, it can do so easily, especially if the representatives of the Law Society take instructions from State House or the Governor’s parlour. Remember the President appoints four commissioners.
From my experience, the commission is important to both the country and the Judiciary. It doesn’t need members who have no clue about what is at stake, no vision of the Judiciary Kenyans want, or who don’t appreciate the Executive’s designs on it. It certainly doesn’t need members who are sponsored projects of the political elite.
For the JSC to deliver to Kenyans, its independent members must have a track record in judicial reforms, be independent of powerful politicians, and have a history of truthfully chronicling the truth, justice and reconciliation of Kenya.
I kept my bargain.