Background
On February 9, 2024, the Judicial Service Commission (JSC) advertised the positions for the Court of Appeal Judges of Kenya. The JSC received a total of Eighty-two (82) applications for the vacancies available. The JSC shortlisted forty-one (41) candidates. The shortlisted candidates will be interviewed from the 3rd to 20th of June 2024 at CBK Pension Towers, Harambe Avenue, Nairobi and it is with this background that ICJ Kenya submits the following for consideration before the JSC:
- The succession of the bench: an age consideration.
ICJ Kenya is concerned by turnover on the bench owing to retirement and as such succession management. We propose that the JSC must try to match the needs of the court including the philosophical mindset of the judge, age, and expected tenure on the bench. JSC should try and strike a balance between younger and older judges. Older and senior candidates are generally more productive owing to their vast experience and boost a court’s productivity; However, the older judges are also vulnerable and too many of them retiring at once can completely wipe out a court’s productivity and institutional deficiency, leaving junior judges without the guidance and mentorship necessary for optimal function.
- The elevation of Judges from Courts of Equal status to that of the High Court
The functions of the Court of Appeal are to handle appeals arising over the decisions of the High Court, Employment And Labour Relations Court, Environmental And Land Court as well as other tribunals as provided in the law. ICJ strongly recommends that the JSC ought to consider Judges from the Employment and Labour Relations Court and the Environment and Land Court in this round of appointments. The judges will add a specialization to the court as well as reinforce the fact that these are courts of equal status to the High court.
The elevation of these judges will also boost the morale of the serving judges of the court as potentially this could pave the way towards having judges on the Court of Appeal and eventually Supreme Court like their counterparts. Their elevation is also important as their specialization will be a value add to the court and present an opportunity for cross pollination of new ideas.
- Integrity and Independence as a cornerstone for all the Judges to be appointed.
Judicial independence is a vital pillar in the constitutional order. However, it has been under threat across Africa and remains a more distant ideal in most African countries. While the Judiciary is the custodian of the rule of law in any democratic system of governance, the socio-political elite continues to underplay its role in ensuring that justice is administered fairly and transparently, especially in political processes. Attacks against the Judiciary have been increased both at the institutional and personal levels.
Therefore, the individual judge of the Court of Appeal, working with the President of the Court play a critical role in ensuring judicial independence and accountability is respected and observed through out the divisions of appellate court. The JSC therefore needs to identify a candidate with strong values of integrity and impeccable morals that can weather the pressure and demands of the office.
- Monitoring of the Recruitment Process
International, regional, and national partners should be given clearance to monitor the recruitment of the Court of Appeal Judges and report whether the process conforms to relevant constitutional, regional, and international guidelines and provisions.
The qualifications should mirror the provisions espoused in the International frameworks, including but not limited to, the UN Basic Principles on the Independence of the Judiciary , the Bangalore Principles, IBA Minimum Standards of Judicial Independence, the Latimer House Principles, the Lilongwe Principles and Guidelines on the Selection and Appointment of Judicial Officers, the Constitution of Kenya 2010 and the Judicial Service Act (First Schedule).
Regionally, the Lilongwe Principles and Guidelines on the Selection and Appointment of Judicial Officers comprise fifteen core underlying principles. The main principles include merit, fairness, transparency and rationality of the appointment. These provide critical indicators for institutions monitoring the process.
The JSC ought to deconstruct the complexity of the public participation and seek targeted stakeholder engagement on the recruitment process.
The interviewer guide should seek to cover the academic and professional qualifications as well as the candidate’s values, aspirations, and ethos. In this regard, the JSC ought to guarantee a transparent, constructive and meaningful public participation process in recruiting the next judges of the Court of Appeal. The JSC must strengthen its public outreach strategy for legitimacy and build public support and trust, which can be done through public baraza’s (online and physical), media engagements, etc.
- Adverse Comments and Submissions
ICJ Kenya acknowledges and appreciates that the interviews of the Court of Appeal Judges will be conducted publicly. As a commission of jurists, we urge the JSC to ensure questions posed to the candidates are respectful and well-meaning. The JSC should provide adequate opportunity to the candidate to respond to the questions posed and if a matter is private/sensitive in nature, the JSC ought to create mechanisms for the candidate to respond to the questions in camera without jeopardising the legitimate public interest in the interview. The interviews should be conducted in a respectful manner that safeguards the dignity of the candidates.
- Equality and Inclusion Principle
ICJ Kenya acknowledges the special role that women play within the judiciaries, in similar or comparable capacities to their male counterparts, and the need to strengthen their contribution to the administration of justice. This will be in line with regional protocols, including the Maputo Protocol. In this regard, the JSC ought to ensure that equality and inclusion principles are key considerations in recruiting the Judges
- The Diversity Question
ICJ Kenya acknowledges the need for JSC to ensure that the judicial bench reflects the society in all respects and may actively prioritise the recruitment of appointable candidates who enhance the diversity of the bench. However, JSC must be careful in the application of diversity and avoid ethnical bias and politics. As a commission, we equally acknowledge that the JSC in striving to ensure and enhance diversity on the Court of Appeal bench, they are limited to the shortlisted candidates.
However, we do encourage the JSC to strive to ensure that after successful interviews, recommend for appointment judges who capture diversity in its entirety. Further, whereas diversity is an essential consideration in selecting the Court of Appeal Judges ; it is critical to factor in numerous other qualities.
We do appreciate the critical role the courts play in developing rich home grown jurisprudence and in doing so, JSC must consider judges who have a rich acumen in research and writing. Critical thinking should equally be considered, it is worthnoting that in several instances the appellate court will be called upon to make decisions on new and emerging legal matters, and it is desired that such judges will have this key competent skills to achieve this.
As a commission, we encourage the JSC to consider candidates who have a diverse background and are multifaceted in terms of skills. As maybe noted by the JSC, we are living in times when things are fast evolving to include technology. Thus, the JSC needs to ensure that the candidates selected for appointment have a wide range of expertise, experience and exposure in other fields and not just limited to legal expertise.
- Diversity in Appointment
As a commission, we appreciate that shortlisted candidates are drawn from diverse backgrounds to include, the bar, bench and academia. We encourage the JSC, to ensure that it is diverse in making recommendations for the Court of Appeal judges, in that the proposed judges will be a blend of different facets of the legal profession including the bar and academia, thus bring new ideas and perspectives on the appellate court, thus enriching our jurisprudence.
- Independence of the Commission and Access to information under Article 35
To safeguard the Judiciary’s institutional independence and accountability, the Constitution 2010 established the Judicial Service Commission (JSC). The JSC has a crucial role to perform in the appointment and removal of judges.The JSC ought to safeguard the Commission’s independence and observe provisions provided for in the Constitution and regional and international principles in recruiting Judges. The process of appointment must also be legitimate in the eyes of the public, if the courts are to build and retain trust and secure the voluntary co-operation of the public in sufficient numbers to ensure the orderly administration of justice.
It is the judges’ responsibility to ‘engender public confidence, as expressed in the Commonwealth Latimer House Principles. A legitimate process may be achieved partly through the demonstrable quality of how transparent the selection process is and the provision made for scrutiny and review in individual cases. Therefore, it is against this background that ICJ Kenya would like to request the scorecards to appreciate and interrogate the Commission’s final decision.
- Development of Jurisprudence
The Court of Appeal for most Kenyans is the final court that they interface with in most criminal, civil or constitutional matters. It is therefore a legitimate expectation that Judges of the Court of Appeal will be persons of deep intellectual foundation who will be able to develop rich jurisprudence nationally, regionally, and globally.
Conclusion
The function of the Judiciary is to interpret and apply national constitutions and legislation, consistent with international human rights conventions and international law, to the extent permitted by the domestic law of each country. ICJ Kenya notes that there is a need to ensure that the right and competent people are chosen for the positions of the Judges of the Court Appeal of Kenya. It is in this regard that ICJ Kenya highlights the following rallying call, that the JSC:
- Makes public the deliberations of the Commission and final results; and
- Takes a longer-term approach to educate the public on the recruitment processes of judicial officers.
