It is remarkable. The JSC placed the onerous duty of reforming the Judiciary, and ridding it of the dead weight of decades of Kenyatta and Moi rule, on the arguably feeble shoulders of the future CJ and DCJ, and the candidates undergoing scrutiny by the JSC were at pains to demonstrate that 'they' were the right people to manage the onerous task. What is even more remarkable is that these candidates are falling for this bait-and-switch. All, bar none, have come out with plans of what they will do, how they will do it, and how long they expect to be at it (never mind the ten-year tenure of the CJ under the Constitution).
If the reforms in the Judiciary were to be left in the hands of the members of the Judiciary, we would still be waiting for change by the time the JSC sits to interview the fifth CJ, fifty years from now. Many of the members of the Judiciary have been at it for decades; many are tainted, if not by actual acts of commission, but then by association with the acts of the Kenyatta, Moi and Kibaki regimes, and not one of them is trusted to be an honest broker when it comes to the question of reforms in the Judiciary. Their incredulous tone of hurt at the suggestion that their association with the ills of the past three regimes would be laughable if it were not for the fact that the candidates have no idea what is required of them as the reform agenda gets truly underway. Neither, it seems, does the JSC.
The most effective reform tool in this programme is transparency. The Judiciary has embarked on a modernisation programme to drag it into the 21st Century. The Milimani Commercial Courts are set to be the most advanced in the country, featuring state of the art equipment and software for the effective administration of its affairs. If this programme is extended to every single court in the land, then the battle for a more transparent Judiciary will have been half-won. The other half of that equation is the willingness and the will of the Judiciary to open up its affairs to public scrutiny. Some of the candidates suggested that they would institute systems of performance review to ensure that the courts are as effective as possible; this is laudable. But the results of the performance review must be published widely in order for Kenyans to know who is to be trusted, and who is not. The JSC, too, must publish what criteria it is relying on in the assessment of the candidates. When it makes its choice of CJ and DCJ to the president, it must publish a report explaining why it suggested the candidates, and what it hopes they will bring to the Judiciary.
Relying on the media for an accurate examination of the interviews and their impacts on the administration of justice in Kenya has proven an exercise in futility. It is now clear that they do not have the intellect or the capacity to sieve out the salient features in the assessment of who is and who is unsuited to head the Judiciary in Kenya. As a result, we are compelled to rely on other sources, such as the politically-divided Law Society or the few independent talking heads that make their way to the TV studios. Therefore, if the new CJ and DCJ, and the JSC wish to ensure the successful reform of the Judiciary, it is imperative that they operate in the most transparent manner possible, flinging open their files for public scrutiny. It is the only way that they can be redeemed in the eyes of the people.
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