The process of recruiting a new chief justice, the deputy chief justice and a judge of the Supreme Court took a new twist Monday after the High Court ordered the Judicial Service Commission to reconsider applicants who were left out during the shortlisting process.
The three positions were left vacant following the retirement of Justices Willy Mutunga, Kalpana Rawal and Philip Tunoi respectively.
High Court Judge George Odunga issued the order even as the vetting process for the new CJ kicked off in earnest on Monday despite an ongoing case filed by Prof Yash Pal Ghai and the Trusted Society of Human Rights Alliance who have moved to court seeking it to compel the JSC to provide information/criteria used in the shortlisting candidates for the three positions.
Court of Appeal Judge Alnashir Visram was the first to appear before the vetting panel on Monday morning.
According to the Star, Justice Odunga quashed an advert shortlisting the candidates and ordered the JSC against forwarding any names to the President for appointments until applicant who were left out are reconsidered for the interviews.
He said the JSC acted illegally when it failed to shortlist applicants for not attaching clearance certificates from the KRA, Helb, the Credit Reference Bureau, the DCI, Law Society of Kenya and Advocates Complaints Commission to their applications.
Prof Makau Mutua, Isaac Rutenberg, and Supreme Court Judge Jackton Ojwang, were among the candidates whose applications the JSC had turned down.
“In my view, for the commission to base its decision on the failure to submit documents not expressly required by the law and in effect to lock out those candidates who the legal instrument from which the commission derives authority does not expressly lock out amounts to abdicating jurisdiction,” Odunga said.
Both Yal Pash Ghai and Trusted Society of Human Rights Alliance have accused the commission of failing to facilitate accountability and the transparent administration of justice.
But JSC through its secretary Anne Amadi has denied breaching any of its constitutional duties in the hiring process.
She said no valid grounds have been advanced as to why the commission should be restrained from proceeding with and concluding the process of recruitment of suitable persons to fill the vacant positions.
In an affidavit, Amadi confirmed that the commission duly observed and complied with all the applicable administrative procedures as stipulated in the constitution and the act.
She argued that the court ought not to permit the petitioners to hold the entire country at ransom when there are no legitimate grounds upon which the process is challenged.
She said JSC will ensure a fair and just process in interviews and reaching the list of the successful candidates who have been scheduled for interviews.