KAIKAI'S KICKER: Let the Supreme Court remain Supreme!

On my kicker, the second President of Kenya, the late Daniel arap Moi, used to compare Kenyans to a chicken which, having had its feet tied all the way from the market, cannot walk on reaching the homestead until it is kicked or chased away. Sometimes I feel Moi was dead accurate.

When it comes to the relationship between Kenyans and the Constitution of Kenya 2010, we are indeed like that chicken. Yes, the chicken in us has never quite appreciated the gravity of the first article of that post-tied chicken-feet Constitution, an article that expressly offers that “all sovereign power belongs to the people of Kenya…”

Oblivious of the tied chicken-feet mindset, the Constitution of Kenya 2010 proceeded to create 12 independent constitutional institutions. These include 10 independent commissions and two independent offices.

If it should come as relief for the Judicial Service Commission, last week’s interview of candidates and eventual nomination of a judge of the Supreme Court was no tied-chicken stuff.

The televised interviews saw commissioners conducting themselves professionally, asking all questions, including the uncomfortable questions, and generally conducting an open process before live television cameras.

The outcome, too acquitted the process well. For any fair viewer watching the live interviews, Justice Mohammed Warsame was by far the best candidate and the most prepared to be the next judge of the Supreme Court.

At some point in the interview, a commissioner wondered aloud whether Warsame was interviewing for Chief Justice and not a judge.

Merit, unlike beauty, is not in the eyes of the beholder. Merit is self-evident.

Merit also thrives in open places, and in such a televised open interview, it could not possibly escape the notice of any fair judge, commissioner or layman that Justice Mohammed Warsame was the man for the job.

For the JSC, take it from the quality of air out there; it went well.

This is a Supreme Court appointment free of any undertones, especially of the damaging political kind. There was none of that smell of sulphur that sometimes attends such appointments.

Candidates were interviewed openly and the best-qualified judicial officer was simply picked for the job.

Now, the Judicial Service Commission must build on its own lessons, the key one being that there should be no substitute to merit when it comes to the appointment of judges.

The Supreme Court of Kenya has sometimes been painted as a political hotbed, yet it should not be.

With only seven positions in a country of 45 plus tribes and 47 counties, that bench had better be populated with sound heads that care for the geographical entity called Kenya in its entirety.

It is painful when Supreme Court interviews are seen from the simplistic point of how a judge would vote in a presidential election petition, for example.

And then ethnicity is thrown in here and there, and then perceived political connections and the like.

There is something unfair about such viewpoints, especially on innocent candidates.

Ultimately, the JSC must embrace its independence and aim to make the Supreme Court a 100 per cent merit-based institution.

Presidential election petitions are only one of several weighty duties of the Supreme Court.

Those judges have more work than just deciding who won or lost the election.

They have a lot of work in between elections, including giving advisory opinions on impossible things like how to review constituency boundaries after missing the deadline.

That is my kicker.