NJOKI NDUGUS CIRCUMCISION DAY The Constitution of Kenya 2010 is a revolution.

Who ever imagined that candidates for monumental positions such as the Chief Justice, Deputy Chief Justice, Director of public Prosecutions and judges of the newly established Supreme Court would be subjected to thorough grilling in broad day light of the media cameras? I would like to thank our local TV stations for broadcasting these events live Pardon me!... I would first like to thank our constitution before I thank other people. The beauty of watching these events live is that one does not have to be relegated to flimsy-short newspaper articles and other forms of short coverage. Of course I dont blame the media since they have a lot to cover and they also have to make it as simple as possible. The Judicial Service Commission completed the task of nominating the candidates for the post of CJ and Deputy CJ, who later passed the names to the President and Prime Minister. And after surmounting these hurdle, including that of CIOC(Constitution Implementation Oversight Committee),the nominees will now face their final test in the floor of the Parliament. The JSC is now on the process of recruiting the most suitable and talented team that will garnish our Supreme Court. The number of the Judges required is 5 out of the 25 aspirants. The commission has received a number of criticisms including even a legal attempt to stop the process on the ground of the method of choosing only one nominee for each available position, instead of several. By using this method the commission is undoubtly having the biggest say in the appointment process since they have the lucrative opportunity of trimming the many candidates and of course no other person other than their appointee will take up the position. That is, if he or she passes the other hurdles. The vetting process has been spectacular. The interviews have been characterized by tough and unpredictable questions of profound relevance, that will no doubt ensure that the most competent and able officers will prevail. The people who are expected to initiate a make-over in the arm of government that has been riddled with all manner of evils, ranging from corruption

and ineffectiveness. But if Mutunga and Barasa are the people we are looking for, then morality and conservativeness will not be a very important attribute for the candidates. The master of tough and incisive tackling is most likely to be Ahmednasir Abdullahi. The interviews have actually led to the emergence of new proverbs such as when you go to be circumcised you must go there naked and when you go to the bathroom you must strip off all clothing for cleaning to be thorough. Of the many episodes of interviews for the judges of the Supreme Court, there is one which caught my eye, that of former MP Njoki Ndugu on 9th June in the morning. There was a portion of the interview that was heated to the point that she almost lost her cool, after receiving the never easy questions from Ahmednasir Abdullahi. This was evidenced by her frequent interruption of Abdullahis questions. This occurred when she was asked on the issue of interpretation of the Constitution using several provided criteria such as intent of the framers, underlying values, the text and expectation of the public. The pandoras box opened when from her response she did not see the need to fully consider and pay special emphasis on the letter of the constitution as a pertinent criterion for interpretation. Abdullahi appeared appalled from such an insinuation. This led to him reading excerpts of the doctrine of living constitution, which displayed the danger of not interpreting the constitution using the letter since each day there are changes, and that therefore we will be lunging in confusion if we dont give special emphasis on the letter compared to other criteria such expectation of the public. Her previous involvement with politics was also questioned severally in various forms by the panel, and fear was expressed that this could have a negative role in her impartiality. Especially considering that one of the functions of the Supreme Court includes presiding over Presidential election disputes. Njoki Ndugu had been a member of PNU and SAFINA before quitting politics. One blunt question raised to her was whether she would not have any prejudice in case involving ODM and PNU. Other panelists went further to argue that even if she was impartial, would the losing side of the Kenyans really believe that

she is so. This argument was propagated based on the legal saying justice need not only be done but seen to be manifestly done or the other one that says Ceasers wife need not only be chaste but manifestly seen to be so. She however valiantly defended herself saying that her knowledge and connections with the politicians will help her in making a more sound decision compared to her counterparts in the race with little or no knowledge of them. She went further try show her estrangement from either of the parties, by saying that in 2008 January, she was involved with activities with a group called Voices of Reason, which resulted in the pointing of fingers from both ODM and PNU camp. She went ahead to teach the panelists of two types of politicians. That is grassroots and board room politicians. She said that the grassroots type are those who are obsessed with rallies while the boardroom type are those concerned mostly with making effective laws. Her correct classification, she said, was the boardroom politician. She even said that most people know her less as a politician. Another thing that I think may have lost her some marks was her admission that she had bias on social economic rights, which have now been incorporated into the Bill of Rights section of the constitution. Such a trait is dangerous since a Supreme Court judge should be impartial to both the government and the citizens, and instead balance the effect of any decision pertaining pursuit of social economic rights by citizens. Since most of them have an impact on the policy making and require extra finances that may overburden the government especially when it had not planned for them. It is also important to note that policy making is the work of the executive. The above damage may have however been cured by her earlier statement that she is a moderate when it comes to judicial activism. In the philosophy of classifying types of judiciary, there are two types, they include the liberals and the conservative. The liberals believe that the judiciary should be vibrant and should reflect the changing pace of the society and should regularly consult the prevailing international customary law, while the conservative that the judiciary should deploy austerity measures to ensure that they dont overstep their boundaries and get

involved in making laws through judgments or interference of the policies stipulated by the executive. According to her response, she will thus ensure that she is a hybrid of the two camps. Her outspoken activism for women was also questioned. Njoki Ndugu has been at the forefront in the fighting for the rights of the minority especially the women. She however dispelled any fears that she was going to take this extraordinary battle for women to the Supreme Court, since a judge should to a referee devoid of passion or prejudice of any of the two sides. This issue occurred when she was asked about the issue of feminist jurisprudence, and she said likes sitting on the fence and not being on neither of the two territories of the radical or the liberal. Apart from the aforementioned tiny controversies that transpired in the theatre, I think Njoki Ndugu is going to be a strong candidate. There are many reasons for this hypothesis. For example she told the commission that a good judge should be brilliant in research and in writing. She further said he or she should also have understanding on the section of Bill of Rights and the newly established devolved system of government. All of these attributes she possesses. Njoki Ndugu has also practiced law as an Advocate of the High Court, she has also worked in the Court of Appeal in Nakuru. She has also worked with the AU(Africa Union) from 2000 to 2002 as a political analyst. She also boasts of her argumentative and persuasion skills, which led to her fulfilling the monumental task of enabling the Sexual Offenses Bill of 2006 see the light of day. We also do not need any further evidence of her leadership skills since she has been to the parliament as a nominated MP. She also stated that she is a workaholic and therefore she will not mind the burden. NJoki Ndugu was also a member of the committee of Experts, and she will therefore not need a lot of Civic Education on the Constitution of Kenya 2010, like her fellow competitors. Some of the priorities she said she will give weight is deploying ICT in the judiciary and employing research assistants to the overworked Judges. She lamented also about the number of judges and Magistrates compared to the enormous population. She was also for the idea of encouraging dissenting opinion in the

Supreme Court, so that they could be used for persuasion especially in the lower courts. It will also encourage development of the law. She lauded the recent budget statement for increasing funds to the judiciary from 1.8 billion to 9 billion I think she will be a strong candidate for the job, especially considering that the women may be given 2 positions out of the possible of 5. The writer is Emmanuel Yegon, a second year law student Email: e.kiprotich@yahoo.com