BY SAM ALFAN.
A lobby group has moved to court to compel the Judicial Service Commission (JSC) to develop and publish rules to guide recruitment of judicial officers.
Sheria Mtaani na Shadrack Wambui says in the petition the guidelines, which will direct the interview process, should be made public.
The lobby says the conduct of interviews lacks structure and fails to adhere to established guidelines, thereby violating the interviewees’ right to a dignified interview.
Justice Hedwig Ong’undi certified the application urgent and directed the matter to be served and responses to filed by 7th of June.
The judge allocated the matter to be heard by Justice Lawrence Mugambi. The matter will be mentioned on June 12th to confirm compliance.
The petition says the JSC’s refusal and denial to interview certain individuals based on purported unfavourable information received about them constitutes to violation of their right to fair hearing and natural justice.
The lobby group further wants the JSC to disclose the names of all candidates who were shortlisted but were not interviewed, and to provide a rationale for their exclusion from the interview process.
“The manner in which JSC conducted the interview process failed to establish proper guidelines for conducting interviews, acted in an overbearing manner towards those who were brought before it,” says the lobby group.
It further wants the High Court to issue an order requiring JSC to disclose the reasons for its failure to interview certain shortlisted individuals, as well as the rationale behind their exclusion.
The lobby says the JSC’s treatment of interviewees, which has drawn significant criticism due to their perceived abuse of power and mistreatment of individuals who come before them and despite their status as guardians of the law, their behaviour has been deemed unacceptable and has raised serious questions about their fitness for their role.
The JSC’s actions are in direct contravention of the Constitution of Kenya, which guarantees the right to equality before the law, the right to fair administrative action, the right to a fair hearing and the right for judicial officers to be immunized against actions,
The petition claims judges who appeared before the commission were subjected to mistreatment, as the commission unjustly utilized cases from their prior judicial proceedings to discredit them, disregarding the constitutional provision that grants them immunity.
“Furthermore, certain judges were unjustly excluded from the interview process, based on allegations of inadequacy in handling previous cases,” the petition states.
It’s the lobby’s argument that the commission’s mistreatment of candidates during last year’s interviews for the position of Chief Justice is a matter of public record.
“One of the aggrieved interviewees, Professor Makau Mutua, expressed his discontent in his column, where he criticized the Respondent’s failure as guardians of legality and the damage they have caused to the credibility of the publicly televised interviews,” Sheria Mtaani says in the petition.
The petition says judges who appeared before the commission were subjected to mistreatment, as the commission unjustly utilized cases from their prior judicial proceedings to discredit them, disregarding the constitutional provision that grants them immunity.
Furthermore, certain judges were unjustly excluded from the interview process, based on allegations of inadequacy in handling previous cases. It is imperative to recognize that justice cannot be served unless judges are afforded the very justice they are entrusted to deliver.
The petition says the Social Transformation Through Access to Justice and the Judiciary strategic plan vehemently underscores the importance of transparency and accountability. The glaring, flagrant, and unambiguous flouting of the constitution and the Judicial Service Act by the 1″ Respondent severely undermines public confidence. In light of this, it is imperative to promptly reinstate transparency, accountability, and good governance.
The lobby added in the petition that the JSC declined to conduct interviews for certain judges and magistrates, citing baseless claims that they are not suitable for the position, without affording them the opportunity to present their defence. This action represents a blatant infringement of their right to a fair hearing, as protected by Article 50 of the Constitution of Kenya.
“The core contention at hand unequivocally posits that the individuals who have already been excluded, despite their inclusion in the initial shortlist, were subjected to an arbitrary and predetermined outcome, effectively depriving them of their right to a meaningful hearing and an opportunity to present their case,” states the lobby group.
It is submitted that various civil society groups, including but not limited to Katiba Institute, International Commission of Jurists and Kenya for Peace with Truth and Justice, have been consistently and vehemently calling out the JSC since 2016.
“This action represents a blatant infringement of their right to a fair hearing, as protected by Article 50 of the Constitution of Kenya,” says the lobby group.
