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Why the choice of the next chief justice matters to business

By William Maema

Last week’s announcement by the Chief Justice David Maraga that he would be proceeding on terminal leave this week  and that he had appointed his beleaguered deputy Philomena Mwilu to hold the reins of power as acting Chief Justice pending the recruitment and appointment of a new Chief Justice pushed the jostling for the coveted position a notch higher. No sooner had the announcement been made than names of possible successors started flooding the media space.

The purpose of this piece is not to comment on the suitability or otherwise of the candidates whose names have been bandied about but rather to propose the kind of Chief Justice that would be good for business and the economic progress of the country.

Despite the many attempts made since the ‘radical surgery’ to rid the Kenyan judiciary of the perception that it is largely corrupt, the vice still hangs on the institution’s neck like an albatross. Whether this is a reflection of the Kenyan moral fabric or an acquired taste is hard to tell. As any commercial lawyer will confirm, the first inevitable question that potential foreign investors ask when considering to invest in Kenya is how incorruptible the judiciary is. Therefore, if it is true that fish starts rotting from the head, the next Chief Justice must be a person who is completely untainted by corruption or scandal of any kind, whether real or perceived. His or her reputation must match, if not surpass, that of the proverbial Caesar’s wife.

Cabinet Secretary Aden Mohammed and his team at the Ministry of Industrialization have worked extremely hard to shore up Kenya’s ranking in the World Bank Ease of Doing Business Index through targeted legislative and regulatory reforms. The country has steadily moved up the ladder from a shameful low of position 108 in 2016 to a respectable high of number 56 globally in 2020, placing us at fourth place in Africa, only behind Mauritius, Rwanda and Morocco.

While significant reforms within the judicial system have been implemented over the same period, the judiciary is often cited as one of the few remaining stumbling blocks in the country’s flight path towards a better ranking.

Investors have scant confidence in the judiciary’s ability to speedily and fairly dispose of commercial disputes in a manner comparable to the practice in developed commonwealth countries, yet with a clear determination and resources this is not an unachievable target.

Business yearns for a Chief Justice who will provide bankable assurance that contractual obligations will be honoured and enforced expeditiously within definite and publicised timeframes. He/she should be agile enough to embrace new technology to speed up hearings and determination of cases with a clear and measurable plan to address case backlog.  Owners of capital generally avoid investing in countries with weak, uncertain or needlessly bureaucratic judicial systems.

Business abhors unpredictability. That is probably why the Constitution provides for a maximum tenure of 10 years for the Chief Justice. This is intended to give him/her a reasonable lifespan to design and implement reasonably long-term strategies before exiting. Unfortunately, this paradigm has not been realised as we have had two stop-gap CJs, each serving for 5 years or less.  In effect, however, each has had no more than 3 years of meaningful work excluding the first year of orientation and the final year of managing succession and exit. This is hardly enough for a CJ to leave behind any meaningful legacy on the economy, leave alone the judiciary itself.

The country, therefore, needs a youthful, intelligent, healthy, self-driven and energetic Chief Justice who, other factors held constant, can serve the entire term of 10 years as envisaged in the Constitution.

The ideal candidate should have a solid track record of ground-breaking jurisprudence, endowed with an indisputable reputation for deep thinking.

The next Chief Justice should be ideologically neutral, objective and of balanced emotional and moral attitudes. Extremism, fundamentalism or sheer intellectual arrogance of any form is dangerous. While firmness and decisiveness are essential attributes, being too opinionated is alienating and undermines consensus-building.

Business thrives on innovation and stability. The CJ should therefore be a liberal thinker but not a radical. He/she should be bold enough to embrace and wrestle with emerging and uncharted frontiers of law as dictated by advancements in science, technology or even genetics. The candidate’s track record in this regard, whether from past judicial decisions, scholarly writings or public pronouncements will be instructive.

Business would be relieved to see a fresh face which stirs a substantial amount of hope and expectation for better days ahead. Appointing one of the same old faces that have held similar positions without much distinction will only elicit a collective yawn of despair across the nation from Kwale to Lokichogio and back.

In economic terms, Kenya is an undisputed regional giant. Its Chief Justice should therefore possess an intellectual and moral stature capable of giving our judiciary national, regional and global recognition and respectability.

For an ethnically divided nation like ours where most key positions are held by members of the larger and politically dominant communities, there is a good case to appoint someone from “outside” who is likely to be devoid of tribal baggage. 

The next CJ should be apolitical but politically savvy enough to understand that the State is a three-legged stool and while the three legs are independent, they are also interdependent. The judiciary will only deliver on its mandate if it engages productively with the other arms of Government. Perennial fights with the other arms of Government is a strategy to nowhere.  The judiciary can maintain its independence and keep the other arms of Government in check without being openly antagonistic or cantankerous which only creates the perception that it is bent on frustrating the economic objectives of the executive. This is counterproductive as it leads to loss of public confidence in the judiciary.

The candidate should be one who appreciates that while the judiciary has power to interpret and apply the law, the executive, equally, has a constitutional mandate to govern and develop the country by implementing its economic policies as promised to the electorate.  Judicial decisions should, therefore, only be based on what is good for the country in each case rather than a myopic and legalistic application of the law which only serves the interests of those opposed to the policies of the government of the day. Accordingly, injunctions to stop socially and economically beneficial government projects should only be granted where no other remedies exist.

The judiciary is a highly sophisticated institution and managing lawyers is only comparable to herding cats. Its next administrator should be one who enjoys or can win the confidence of the judicial staff and indeed all stakeholders. He/she should possess management skills which have been tried and tested either on previous appointments within the judiciary or in other well-managed organisations. 

Finally, the new CJ must have the charisma and gravitas to attract top notch talent to the bench. As the law becomes more and more complex, the judiciary should be resourced with the best legal brains available.

Granted, the appointment of a Chief Justice is a high stakes game in any country and Kenya is no exception. That said, the business community hopes, perhaps vainly, that political considerations will not overshadow what is good for the economy and the population at large. 

The article was featured in the Business Daily on 16 December 2020 and can be accessed here.