Pick Either Mutunga Or Barasa, Not Both

Kimaru Pharis

8 June 2011

opinion

Nairobi — The problem with the nomination of both Dr Willy Mutunga and Ms Nancy Barasa is one: they are both liberal, and given the importance of the Supreme Court, it gives this court an unhealthy tint from the word go.

It does not take a legal mind to appreciate that the Supreme Court requires an intellectual, moral and philosophical balance which can only be achieved through diversity in its composition.

A Supreme Court packed with judges who share the same moral and intellectual philosophy is a disservice to the nation.

This is where the Judicial Service Commission went wrong with Dr Mutunga and Ms Barasa, and they must correct that imbalance when they fill up the remaining five slots.

The phrase ‘judicial philosophy’ is used in legal circles to refer to “the set of ideas and beliefs which dictate how Justices will interpret the constitution and its principles, and this in turn depends on a judge’s ideological convictions.”

I feel the JSC is blinded by the need to reform the Judiciary and in the quest to fill the highest court with so-called reform-minded judges, they might end up giving Kenya a highly liberal court, which will neither be fair nor right.

The Supreme Court is a court of last resort, one that will have to rule on the most controversial socio-political issues of our time.

It is feasible that the court will rule on abortion, gay rights, sex education, sexual harassment and many other hot-button issues.

It would be tragic if such cases make their way to a court with only one intellectual and moral leaning.

This is the downside of the JSC’s preoccupation with the largely administrative task of reforming the Judiciary.

It should have picked a reformer for Chief Justice and taken the overall ideological composition of the Supreme Court into mind when nominating the deputy.

The JSC is currently conducting interviews for judges of the Supreme Court, and given how poorly they performed in picking the first two members, they cannot be relied upon to do much better unless they get a timely kick in the shins.

There are those who argue that Dr Mutunga and Ms Barasa must be approved as fast as possible so that the constitutional implementation process does not lose momentum, but Parliament would be abdicating its role if it rushed matters.

The Church has taken a lot of flak for its opposition to the nominees, but the opposition is justified. The clerics may not have expressed this opposition eloquently, but that does not take away from the appropriateness of their stance.

The Church is well within its rights to question the moral perspectives of the nominees because the Supreme Court will, in its lifetime, have to rule on the biggest moral and social issues based, not just on the law, but its interpretation of morality as well.

Mr Kimaru is a political communications consultant

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