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Annual Survey of International & Comparative Law

Authors

Njeri Thuki

Abstract

In this paper, I focus on the selection of judicial officers using judicial commissions. These judicial commissions are also referred to as “judicial councils” or “merit commissions,” so for the purposes of this study, these three terms are synonymous. This paper focuses on Kenya and England because they have taken similar paths to judicial reform. For example, they both added an extra tier to the hierarchical structure and therefore both have a Supreme Court. They both have robust judicial commissions that have changed the selection of judicial officers. However, the judicial commission in Kenya, known as the Judicial Service Commission (hereinafter “JSC”) selects both magistrates and judges who must have had legal training and passed the Kenyan Bar exam. The judicial commission in England, referred to as the Judicial Appointments Commission (hereinafter “JAC”), only selects judges. Though Kenya is a former British colony and part of the Commonwealth, it did not transplant the JAC from England in its reforms. In fact, Kenya’s JSC predates the JAC in England but was re-constituted and strengthened in 2010. Nevertheless, the JSC has a slight resemblance to the JAC. These two countries also demonstrate the success of judicial councils in both a developed and stable democracy as well as in a developing and fragile democracy.

The purpose of this study is to compare the contributions to judicial reforms that both judicial commissions have made in their respective countries. The JSC in Kenya has been functioning for two years, having officially started its duties in February 2011. Drawing on lessons from the JAC, the JSC’s performance in its first two years, and lessons from judicial councils globally, I make recommendations that, if implemented, will strengthen the JSC.

Cite as: 19 Annl. Survey Int'l. Comp. L. 45 (2013).

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