Judicial Service Commission weakest link to effective Judiciary
The Constitution is clear that Kenya is a democracy with three arms of government: the Executive, Judiciary and Parliament.
All power belongs to the people and is exercised through the three arms, constitutional commissions and independent offices.
After long periods of suffering under a Judiciary that used to rubberstamp decisions by the Executive, Kenyans in 2010 ratified a Constitution that shields courts from misuse.
The ideals of democracy, rule of law and human rights espoused in the Constitution can only be enforced with a robustly independent Judiciary.
That is why the Constitution not only proclaims the court system to be independent, but creates mechanisms such as the Judiciary Fund to manage its cash as well as the Judicial Service Commission to preside over key matters.
The JSC has the singular mandate of promoting the independence and accountability of the Judiciary and the efficient, effective and transparent administration of justice.
It comprises the Chief Justice, a judge each from the Supreme Court, Court of Appeal and the High Court.
Other members include a magistrate, two representatives of the Law Society of Kenya(LSK), a nominee of the Public Service Commission (PSC) and one woman and one man to represent the public.
The recent spat between President Uhuru Kenyatta and Chief Justice David Maraga over the delay in the appointment of 41 judges has opened up debate about the composition of the JSC.
It is awkward that Attorney General Paul Kihara, who moved to block the appointments is himself a member of the JSC that approved the nominees.
There has been an argument that with the AG, the PSC nominee, the two public representatives and the possibility of two the LSK members of leaning towards the Executive, it is impossible to talk of an in independent judicial commission.
And there is the matter of lower rank judicial officers such magistrates and judges sitting in interviews for their seniors including judges of the Supreme Court and even the Chief Justice.
As country discusses the possibility of reviewing the 2010 Constitution, there should be a conversation about the composition of the JSC.
The general feeling is that as currently constituted, it cannot ensure an independent Judiciary.
