ICJ-Kenya presents Memorandum on Supreme Court Judge recruitment

SUBJECT: SAFEGUARDING JUDICIAL INDEPENDENCE, CONSTITUTIONAL ADJUDICATION,
AND ELECTORAL LEGITIMACY AHEAD OF THE 2027 ELECTIONS

1. Introduction
   The appointment of a Judge to the Supreme Court of Kenya transcends ordinary judicial
   recruitment; it is a constitutional moment with profound implications for the stability of the
   Republic. Established under Article 163 of the Constitution, the Supreme Court stands as the apex
   judicial authority, the ultimate interpreter of the Constitution, and the final arbiter of presidential
   election disputes.
   In Kenya’s recent history, the Supreme Court has occupied a uniquely consequential space,
   particularly in adjudicating presidential election petitions. Its decisions have shaped not only legal
   doctrine but also the trajectory of democratic governance. This context demands that the
   recruitment process be approached with exceptional rigour, foresight, and constitutional fidelity.
   This memorandum advises the Judicial Service Commission (JSC) to ensure that the appointment
   reflects the highest standards of judicial competence, independence, integrity, and jurisprudential
   clarity, especially given the sensitive pre-election environment leading up to the 2027 general
   elections.
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2. The Unique Role of the Supreme Court in Kenya
   The Supreme Court is not merely a court of last resort; it is a constitutional court of first instance in
   presidential election disputes, a court of finality, and a guardian of constitutional order. Its core
   functions include:

• Interpreting and developing constitutional jurisprudence;
• Advancing constitutionalism;
• Resolving presidential election petitions within strict timelines;
• Harmonising conflicting jurisprudence across superior courts;
• Safeguarding the doctrine of separation of powers; and
• Acting as a stabilising institution during political crises.
  The Supreme Court has been and will continue to be called upon to serve as the final authority on
  critical issues affecting constitutionalism Kenya. These include the protection of human rights,
  such as affirming the right of sexual minorities to freedom of association; matters concerning the
  very structure of the Constitution, as seen in the Building Bridges Initiative case; and questions of
  separation of powers, illustrated by the National Constituency Development Fund (NCDF) case
  and the Two-Thirds Gender Rule. In all these, the Supreme Court stands as the ultimate guardian in
  interpreting and safeguarding the Constitution of Kenya, 2010
  Furthermore, in moments of electoral contestation, the Court becomes the last line between
  constitutional order and democratic breakdown. Its legitimacy derives not solely from legal
  correctness but from public confidence, institutional coherence, and the moral authority of its
  judges. As Prof. Chidi Odinkalu has observed in African contexts, apex courts often operate as
  “courts of political settlement,” where the stakes transcend legal disputes and implicate national
  stability. This reality demands judges who are not only legally sound but also institutionally
  conscious and historically aware.

1. The Current Context: A Precarious Democratic Moment
   Kenya is entering a politically charged period as it approaches the 2027 general elections. The last
   decade has demonstrated that electoral processes are increasingly contested, litigated, and
   ultimately resolved in the courts. The 2007 political crisis, for instance, was partly attributed to a
   breakdown in public trust in the judiciary, which was not then seen as a credible, independent
   arbiter.
   The 2027 elections are uniquely consequential for several reasons:
   3.1 Incumbency and Polarisation
   The election will involve an incumbent president seeking re-election, a scenario historically
   associated with heightened political contestation, increased pressure on electoral and oversight
   bodies, and a greater likelihood of post-election litigation.
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   3.2 Rising Civic Consciousness and Citizen Activism
   Kenya has experienced a significant shift in civic engagement, particularly among young people.
   The 2024 Finance Bill protests reflect a new era of digitally mobilised, politically aware, and
   conscious citizenry. This signals a transition from passive citizenship to active democratic
   engagement, suggesting that future elections will be contested not only at the ballot but also in
   public discourse and the courts.
   3.3 A Tense and Fragmented Political Environment
   The current political environment is marked by increasingly confrontational rhetoric among political
   leaders and the public. Recent exchanges between senior leaders in the Executive and the
   Opposition reflect deep political fissures. These exchanges, widely reported and consumed across
   media platforms, illustrate a deterioration of political civility and cohesion that may translate into
   heightened electoral tensions.
   The JSC must recognise that the judiciary, and especially the Supreme Court, has become a central
   arena for political legitimacy. It must therefore guard public trust, which is vital for democracy to
   thrive. In this environment, the Supreme Court must be composed of judges who are institutionally
   mature, jurisprudentially grounded, and resilient under pressure.
2. Why This Appointment Requires Exceptional Caution
   4.1 The Supreme Court is Not a Learning Bench
   Unlike lower courts, where judges may grow into their roles, the Supreme Court demands
   immediate readiness. This is not a court for learning on the job. The consequences of error are too
   grave, and the timelines—especially in presidential petitions—are too compressed. A Supreme
   Court Judge must therefore arrive with a fully formed jurisprudential philosophy, demonstrate
   mastery of constitutional interpretation, and be capable of writing coherent, influential, and
   precedent-setting judgments from the outset.
   4.2 The Need for Jurisprudential Clarity
   As Dr Mercy Deche’s work on judicial behaviour and legitimacy underscores, the predictability and
   coherence of judicial reasoning are central to institutional trust. A judge whose philosophy is
   unknown or inconsistent introduces uncertainty into the Court’s decision-making process. Kenya
   cannot afford Supreme Court Judges who exhibit jurisprudential inconsistency, engage in
   fragmented reasoning in election petitions, or render decisions that appear ad hoc or politically
   influenced. The ideal candidate must therefore have a clear, established, and publicly discernible
   jurisprudential orientation.
3. The Ideal Supreme Court Judge: A “Towering” Judicial Figure
   A Supreme Court Judge must be more than competent; they must be towering in intellect,
   character, and institutional presence.
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   5.1 Core Attributes
   Drawing from the Constitution, the Bangalore Principles, and comparative jurisprudence, the ideal
   candidate must embody:
4. Jurisprudential Depth: Demonstrated expertise in constitutional law, a consistent and
   well-articulated judicial philosophy, and experience in complex, high-stakes litigation or
   adjudication.
5. Institutional Maturity (“Judicial Shock Absorbers”): The ability to withstand political
   pressure without compromise, experience in handling high-profile or politically sensitive
   cases, and emotional and intellectual resilience in moments of national crisis. The Supreme
   Court must absorb political pressure, not transmit it.
6. Integrity Beyond Reproach: No credible allegations of corruption or impropriety, a
   demonstrable commitment to ethical conduct, and a reputation that inspires public trust.
7. Courage and Constitutional Fidelity: A willingness to make unpopular but legally sound
   decisions and a commitment to constitutional supremacy over political expediency.
8. Clarity of Thought and Expression: The ability to produce clear, reasoned, and accessible
   judgments and the capacity to shape jurisprudence beyond the immediate case.
9. Lessons from Kenya’s Electoral Jurisprudence
   Kenya’s experience with presidential election petitions—particularly in 2013, 2017, and 2022—
   demonstrates that:

• The Supreme Court is often called upon to decide cases under intense public scrutiny.
• Decisions are scrutinized not only legally but also politically and socially.
• The reasoning of the Court is as important as the outcome.
  The 2017 annulment remains a landmark moment of judicial courage, but it also illustrates the
  immense pressure placed on judges. Future benches must be composed of individuals prepared
  to navigate such moments with fortitude and clarity.

1. Risks of Inadequate Appointment
   Failure to appoint a suitable candidate carries significant risks:

Potential constitutional crises.
As comparative experiences in Africa (e.g., Ghana, Malawi) show, the weakening of apex courts
often begins with compromised appointments.

Erosion of public confidence in the judiciary;

Fragmentation of constitutional jurisprudence;

Increased politicisation of the Court;

Recommendations
In addition to its broader observations, ICJ Kenya offers the following specific recommendations for
this recruitment:

Prioritise a Proven Jurisprudential Record: The JSC should prioritise candidates with a
demonstrable and consistent body of work in constitutional adjudication.

Avoid “Learning Curve” Candidates: Given the current political context, Kenya cannot
afford a judge who will grow into the role. The candidate must be immediately effective.

Explicitly Assess Jurisprudential Philosophy: Interviews should interrogate the
candidate’s approach to constitutional interpretation, their understanding of electoral
justice, and their position on judicial independence and the separation of powers.

Evaluate Institutional Resilience: The JSC should assess whether the candidate has
handled high-pressure legal environments and demonstrated independence in past roles.

Consider the 2027 Electoral Context: The appointment must be made with a clear
understanding that the judge will likely sit on a presidential election petition. The Court must
be composed of individuals who can command public trust in moments of national tension.

Safeguard Public Confidence: Transparency in the recruitment process must be
enhanced to ensure the appointment is perceived as merit-based, independent, and
credible.

Conclusion
The recruitment of a Supreme Court Judge at this moment in Kenya’s history is not merely
administrative; it is constitutional, political, and generational. The Supreme Court is the final
guardian of Kenya’s constitutional democracy, and its strength lies not only in the law but in the
character and capacity of its judges.
As Kenya approaches the 2027 elections, the country requires a judge who is not learning, but
leading; not adapting, but anchored; not uncertain, but clear in jurisprudence and conviction.
The JSC must therefore rise to this moment and appoint a judge who embodies the highest ideals
of constitutionalism, human rights, judicial independence, and public trust.
On behalf of ICJ Kenya
Christine Alai

Institutional instability during election disputes; and