What the Vetting of Judges and Magistrates Bill 2010 demands from magistrates and judges amounts to applying for their jobs all over again and being interviewed by a team of very highly respected professional people. On integrity the Bill demands that the magistrates and judges should demonstrate consistent history of honesty and high moral character in professional and personal life; respect for professional duties arising under the codes of professional and judicial conduct; and ability to understand the need to maintain propriety and the appearance of Propriety .
This means the manner in which magistrates and judges have been working by reporting on duty as and when they pleased will now be a thing of the past. The Bill gives the Vetting of Judges and Magistrates Board very strict methods to use in order to find out whether the judges and magistrates they are vetting will be fair in exercising their duties. It says magistrates and judges being vetted will be expected to demonstrate to have the ability to be impartial to all persons and commitment to equal justice under the law.
It also says open-mindedness and capacity to decide issues according to the law, even when the law conflicts with personal views will be an important attributes for judges and magistrates to have. The Board will also be expected to look at the judges and magistrates’ temperament which shall include but not limited to demonstrable possession of compassion and humility; history of courtesy and civility in dealing with others; ability to maintain composure under stress; and ability to control anger and maintain calmness and order.
They will also be expected to have very high standard of judgment which will include common sense, elements of which shall include but not limited to a sound balance between abstract knowledge and practical reality and in particular, demonstrable ability to make prompt decisions that resolve difficult problems in a way that makes practical sense within the constraints of any applicable rules or governing principles.
On legal and life experience the Bill demands the Board to look at the amount and breadth of legal experience and the suitability of that experience for the position, including trial and other courtroom experience and administrative skills; broader qualities reflected in life experiences, such as the diversity of personal and educational history, exposure to persons of different ethnic and cultural backgrounds, and demonstrable interests in areas outside the legal field.
The Bill expects the Board to find out whether the judges and magistrates have demonstrable commitment to public and community service: elements of which shall include but not limited to the extent to which a judge or magistrate has demonstrated a commitment to the community generally and to improving access to the justice system in particular.
The Bill demands the Board to consider information gathered in the course of personal interviews with the affected judges and magistrates as well as their records to be confidential. It says every judge or magistrate to be vetted shall be given sufficient notice which shall include a summary of complaints, if any, against the judge or magistrate. For this reason the hearing by the Board may not be conducted in public, unless the concerned judge or magistrate requests a public hearing. It also says the rules of natural justice shall apply with reference to the Board’s proceedings.
The Bill says that a judge or magistrate who submits to vetting shall be entitled at their own cost, to legal representation. According to the Bill the first judges and magistrates to be vetted shall be the Court of Appeal Judges, followed by Judges of the High Court, the Registrar of the High Court, the Chief Court Administrator, Chief Magistrates and others in that order. Upon finding on the face of record that a serving judge or magistrate should be removed, they shall be required to immediately proceed on leave.
According to the Bill the Board shall inform the concerned judge or magistrate in writing of the final determination including reasons for the determination. Once informed of the decision the judge or magistrate shall be deemed removed. The decision to remove a judge or magistrate from service shall be made public. According to the Bill a judge or magistrate, who has undergone the vetting process and is dissatisfied with the determination of the Board, may request for review by the same panel within seven days of the determination.
The Bill says the Board shall not grant a request for review unless the request is based on the discovery of a new and important matter which was not within the knowledge of or could not be produced by the judge or magistrate at the time the determination or finding sought to be reviewed was made provided that such lack of knowledge on the part of the judge or magistrate was not due to lack of due diligence; or on some mistake or error apparent on the face of the record. The Bill also says the decision by the panel under this section shall not be subject to further review or question in, or review by, any court.
The Bill explains that the vetting process once commenced shall not exceed a period of one year. The vetting of Court of Appeal judges and judges of the High Court shall be finalized within three months; the vetting of magistrates shall be finalized within six months; and all the requests for reviews granted shall be considered after the vetting of all judges and magistrates shall be finalized within one month. It also explains that the Board shall stand dissolved within thirty days of the execution of its mandate upon which this Act shall lapse.
The Bill is not just on the fault finding mission. In fact it offers very generous terms to the judges and magistrates it will show the door after the entire exercise. It says a serving judge or magistrate shall elect within three months of the commencement of the Act whether to be subjected to the vetting process; or to leave judicial service voluntarily. A judge or magistrate who elects to leave judicial service voluntarily or is found unsuitable after vetting shall be entitled to terminal benefits for early retirement calculated on the basis of the number of years served. It generously says that a judge or magistrate who voluntarily leaves service or is found unsuitable after vetting shall be deemed qualified for early retirement.
Wednesday, September 22, 2010
Constitution: Judges’ vetting Bill promising
The days of corrupt judges and magistrates are about to disappear. A bill to sanitize the Judiciary has been published. Known as The Vetting of Judges and Magistrates Bill 2010, it aims at vetting of judges and magistrate to determine their suitability in order for them to continue serving in the Judiciary. This follows the constitutional directive as provided under Clause 23 of the Sixth Schedule of the Constitution which commands Parliament to enact legislation to establish a mechanism and procedures for vetting the people who serve on the Bench.
According to Article 159 (1) of the new Constitution Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the new Constitution. The Constitution also says in exercising judicial authority, the courts and tribunals shall be guided by the principles of justice being done to all, irrespective of status; and making sure that justice shall not be delayed. The new Constitution also promotes the alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.
In the past corruption in the Judiciary was promoted by undue regard to
procedural technicalities that saw so many corrupt individual avoiding justice by claiming protection from the Constitution we have just thrown into the dustbin.
The vetting Bill establishes an independent Board to be known as the Vetting of Judges and Magistrates Board which shall be made up of very highly respected personalities of proven ability.
Though the nine members of the Vetting Board shall be nominated by the President in consultation with the Prime Minister, Parliament will have to endorse those nominations before the two top leaders in Kenya make the appointments. Six of the appointees will be Kenyans .This makes the appointment of members of the Vetting Board to be so transparent that the people of Kenya will be able to follow the whole procedure in a very open manner.
The Bill does not allow the President to lock himself up in a room with the Prime Minister to appoint members of the Vetting Board. It actually sets up a very elaborate procedure of getting the right people for the tough job. It all starts with the President in consultation with the Prime Minister declaring the vacancies in the Board through a notice in the Gazette. Applications will be forwarded to the Public Service Commission and may be made by any qualified person; or organizations or group of persons proposing the nomination of any qualified person.
The names of all applicants shall then be published in the Gazette before the Public Service Commission convenes a Committee comprising of one representative from the Cabinet Office; Office of the Prime Minister; Ministry of Justice, National Cohesion and Constitutional Affairs; State Law Office; Ministry of State for Public Service; and
Appointment of Public Service Commission; for the purposes of considering the applications, interviewing and short listing at least three persons qualified for appointment as chairperson and eighteen persons who qualify for appointment as members.
For the positions of the chairperson and deputy chairperson the team will consider people with at least twenty (20) years or an aggregate of twenty (20) years experience as judge of superior court, distinguished academic, judicial officer or other relevant legal practice in the public or private sector in Kenya. The Bill says a person is qualified for appointment as a member if such person has a degree from a recognized university; has at least fifteen (15) years distinguished post qualification experience in their field of study; and satisfies the requirements of Chapter Six of the Constitution which deals with leadership and integrity.
After short-listing the names of the people with the right qualifications the Public Service Commission shall forward the names President and the Prime Minister for nomination. That is when the President, in consultation with the Prime Minister, shall nominate a chairperson and eight other persons for appointment as members of the Board and forward the names to the National Assembly.
The National Assembly shall then consider all the nominations received and approve or reject any nomination. Where the National Assembly approves the nominees, the Speaker shall within three days of the approval forward the names of the approved persons to the President for appointment. If the MPs reject any nomination, the Speaker shall within three days of the rejection communicate the decision to the President, who in consultation with the Prime Minister shall submit fresh nomination from amongst the persons short-listed and forwarded by the Public Service Commission.
If the National Assembly rejects all or any subsequent nominee submitted by the President for approval then the whole process has to be repeated all over again. But if the MPs approve the President and Prime Minister’s nominations then the President shall, within seven days, by notice in the Gazette, appoint the chairperson and members approved by the National Assembly. The Bill requires the President and the Prime Minister to ensure that the Board reflects the regional and ethnic diversity of the people of Kenya and not more than two-thirds of the members are of the same gender. The President shall also, in consultation with the Prime Minister nominate three distinguished non-citizen serving or retired judges each of whom has served as a Chief Justice or judge of the superior court to be members of the Board.
In the tough task of vetting Judges and magistrates the Board shall consider whether a serving judge or magistrate would have met the constitutional suitability thresholds for appointment as a judge of the superior courts or as a magistrate. It shall also consider the track record of the concerned judge or magistrate including prior judicial pronouncements, competence and diligence. Judges and magistrates who have made pronounced unfair judgments as a result of corruption will easily be exposed through this tight procedure.
The Board will also examine any pending or concluded criminal cases before a court of law against the concerned judge or magistrate; and also look at any recommendations for prosecution by the Attorney-General or Ethics and Anti-Corruption Commission. Likewise the Board will examine pending complaints from any person or body including but not limited to Law Society of Kenya, Ethics and Anti-Corruption Commission, Disciplinary Committee, Advocates Complaints Commission, the Attorney General, Public Complaints Standing Committee, Kenya National Commission on Human Rights, National Security Intelligence Service, the Police and the Judicial Service Commission. This means the entire Kenyan community as represented in various institutions will be involved in vetting of Judges and Magistrates.
According to the Bill the suitability thresholds referred to shall, among others, capture professional competence: elements of which shall include, but not limited to, intellectual capacity, legal judgment, diligence, substantive and procedural knowledge of the law, organizational and administrative skills, and the ability to work well with a variety of people. The judges and magistrates to be vetted will have to prove to have written and oral communication skills: the elements of which shall include, but not limited to, ability to communicate in writing and speaking; ability to discuss factual and legal issues in clear, logical, and accurate legal writing; and effectiveness in communicating orally in a way that will readily be understood and respected by people from all walks of life.
According to Article 159 (1) of the new Constitution Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the new Constitution. The Constitution also says in exercising judicial authority, the courts and tribunals shall be guided by the principles of justice being done to all, irrespective of status; and making sure that justice shall not be delayed. The new Constitution also promotes the alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.
In the past corruption in the Judiciary was promoted by undue regard to
procedural technicalities that saw so many corrupt individual avoiding justice by claiming protection from the Constitution we have just thrown into the dustbin.
The vetting Bill establishes an independent Board to be known as the Vetting of Judges and Magistrates Board which shall be made up of very highly respected personalities of proven ability.
Though the nine members of the Vetting Board shall be nominated by the President in consultation with the Prime Minister, Parliament will have to endorse those nominations before the two top leaders in Kenya make the appointments. Six of the appointees will be Kenyans .This makes the appointment of members of the Vetting Board to be so transparent that the people of Kenya will be able to follow the whole procedure in a very open manner.
The Bill does not allow the President to lock himself up in a room with the Prime Minister to appoint members of the Vetting Board. It actually sets up a very elaborate procedure of getting the right people for the tough job. It all starts with the President in consultation with the Prime Minister declaring the vacancies in the Board through a notice in the Gazette. Applications will be forwarded to the Public Service Commission and may be made by any qualified person; or organizations or group of persons proposing the nomination of any qualified person.
The names of all applicants shall then be published in the Gazette before the Public Service Commission convenes a Committee comprising of one representative from the Cabinet Office; Office of the Prime Minister; Ministry of Justice, National Cohesion and Constitutional Affairs; State Law Office; Ministry of State for Public Service; and
Appointment of Public Service Commission; for the purposes of considering the applications, interviewing and short listing at least three persons qualified for appointment as chairperson and eighteen persons who qualify for appointment as members.
For the positions of the chairperson and deputy chairperson the team will consider people with at least twenty (20) years or an aggregate of twenty (20) years experience as judge of superior court, distinguished academic, judicial officer or other relevant legal practice in the public or private sector in Kenya. The Bill says a person is qualified for appointment as a member if such person has a degree from a recognized university; has at least fifteen (15) years distinguished post qualification experience in their field of study; and satisfies the requirements of Chapter Six of the Constitution which deals with leadership and integrity.
After short-listing the names of the people with the right qualifications the Public Service Commission shall forward the names President and the Prime Minister for nomination. That is when the President, in consultation with the Prime Minister, shall nominate a chairperson and eight other persons for appointment as members of the Board and forward the names to the National Assembly.
The National Assembly shall then consider all the nominations received and approve or reject any nomination. Where the National Assembly approves the nominees, the Speaker shall within three days of the approval forward the names of the approved persons to the President for appointment. If the MPs reject any nomination, the Speaker shall within three days of the rejection communicate the decision to the President, who in consultation with the Prime Minister shall submit fresh nomination from amongst the persons short-listed and forwarded by the Public Service Commission.
If the National Assembly rejects all or any subsequent nominee submitted by the President for approval then the whole process has to be repeated all over again. But if the MPs approve the President and Prime Minister’s nominations then the President shall, within seven days, by notice in the Gazette, appoint the chairperson and members approved by the National Assembly. The Bill requires the President and the Prime Minister to ensure that the Board reflects the regional and ethnic diversity of the people of Kenya and not more than two-thirds of the members are of the same gender. The President shall also, in consultation with the Prime Minister nominate three distinguished non-citizen serving or retired judges each of whom has served as a Chief Justice or judge of the superior court to be members of the Board.
In the tough task of vetting Judges and magistrates the Board shall consider whether a serving judge or magistrate would have met the constitutional suitability thresholds for appointment as a judge of the superior courts or as a magistrate. It shall also consider the track record of the concerned judge or magistrate including prior judicial pronouncements, competence and diligence. Judges and magistrates who have made pronounced unfair judgments as a result of corruption will easily be exposed through this tight procedure.
The Board will also examine any pending or concluded criminal cases before a court of law against the concerned judge or magistrate; and also look at any recommendations for prosecution by the Attorney-General or Ethics and Anti-Corruption Commission. Likewise the Board will examine pending complaints from any person or body including but not limited to Law Society of Kenya, Ethics and Anti-Corruption Commission, Disciplinary Committee, Advocates Complaints Commission, the Attorney General, Public Complaints Standing Committee, Kenya National Commission on Human Rights, National Security Intelligence Service, the Police and the Judicial Service Commission. This means the entire Kenyan community as represented in various institutions will be involved in vetting of Judges and Magistrates.
According to the Bill the suitability thresholds referred to shall, among others, capture professional competence: elements of which shall include, but not limited to, intellectual capacity, legal judgment, diligence, substantive and procedural knowledge of the law, organizational and administrative skills, and the ability to work well with a variety of people. The judges and magistrates to be vetted will have to prove to have written and oral communication skills: the elements of which shall include, but not limited to, ability to communicate in writing and speaking; ability to discuss factual and legal issues in clear, logical, and accurate legal writing; and effectiveness in communicating orally in a way that will readily be understood and respected by people from all walks of life.
Friday, September 17, 2010
Constitution: Implementation Bill is excellent
The Commission for the Implementation of the Constitution Bill, 2010 has been published. It reveals a commendable attempt by Mutula Kilonzo to create a very transparent mechanism to appoint competent Kenyans who will play a major role in facilitating and overseeing the development of legislation and administrative procedures required to implement the new Constitution.
In its Memorandum of Objects and Reasons, Mutula explains that the main object of the Bill is to provide for the qualifications and appointment procedure of chairperson and members of the Constitution Implementation Commission established under the Sixth Schedule of the Constitution. He says the Commission is established primarily to oversee the implementation of the new Constitution of Kenya promulgated on the 27th August 2010.
According to the Minister the Constitution establishes a presidential system of Government and in such models, appointment to key offices originates from the Executive. He explains that under Article 250 the role of Parliament is to approve the person nominated by the Executive.
According to the Bill, the Commission for the Implementation of the Constitution (CIC) will have quite a heavy responsibility which will include monitoring, facilitating, and overseeing the development of legislation and administrative procedures required to implement the Constitution; coordinating with the Attorney-General and the Kenya
Law Reform Commission in preparing for tabling in Parliament, the legislation required to implement the Constitution; working with each constitutional Commission to ensure that the letter and the spirit of the Constitution is respected.
The responsibility will also include reporting regularly to the Constitutional Implementation Oversight Committee, which will soon have to be formed by Parliament, on the progress in the implementation of the Constitution; and any impediments to the implementation of the constitution. The duties will also include exercising such other functions as are provided for by the constitution or any other written law.
The Bill sets very high standards for people who will want to serve in the (CIC). Only qualified people can hope to be appointed to serve it. No one can hope to be appointed to the Commission unless he or she is a citizen of Kenya; possess a degree from a recognized university; has knowledge and experience of at least ten years in matters relating to either law, public administration, economics, gender, human rights, or government.
Apart from the above qualifications no one can hope to be appointed to the Commission unless he or she meets the requirements of Chapter Six of the Constitution. Which means whoever is appointed must demonstrates respect for the people; brings honour to the nation and dignity to the office; and promote public confidence in the integrityof the office according to the new Constitution. He or she will be expected to take the responsibility to serve the people, rather than the power to rule them.
According to the Bill the people who will serve in the CIC will have to have had a distinguished career in their respective fields. The chairperson of the Commission shall be a person who is qualified to hold the office of judge of the Supreme Court under the Constitution. The Bill categorically says no person shall be qualified for appointment as a member if such a person is a Member of Parliament; is a member of a local authority; or is bankrupt. Those who served in the Committee of Experts which was appointed under the Constitution of Kenya Review Act, 2008 are also not allowed to serve in the ICC.
No sooner was the Bill to create the CIC published than the country’s three most respected legal institutions – LSK, Fida and ICJ drew up a list of lawyers they thought should not be considered “for the position of Chief Justice when it falls vacant in February”. Though the list of the people the three law institution is supposed to make sure none of them becomes the CJ after Evans Gicheru, the innuendo is clear. Those on the list should also not be considered to serve in the CIC. On the list of the lawyers LSK, Fida and ICJ don’t want to be considered for the post of the Chief Justice are all the current Judges and magistrates “because they have not been vetted”
According to Article 73(2) in Chapter Six of the Constitution the guiding principles of leadership and integrity include selection on the basis of personal integrity, competence and suitability. The people who will serve in the CIC must be those with objectivity and impartiality in decision making, and in ensuring that the decisions they make are not influenced by nepotism, favouritism, other improper motives or corrupt practices.
They must be people who will be expected to provide selfless service based solely on the public interest, demonstrated by honesty in the execution of public duties. According to the Constitution they must also make declaration of any personal interest that may conflict with public duties. They must be people who are prepared to be accountable to the public for their decisions and actions while they remain disciplined and committed in serving the people.
When MPs meet soon to debate on The Commission for the Implementation of the Constitution Bill, 2010 they will find a very comprehensive draft legislation they may not be able to alter. The people will particularly see which members of parliament will want to alter the procedure laid down by Mutula Kilonzo to be followed before hiring members of the CIC. According to the Bill the procedure begins when the President in consultation with the Prime Minister when they declare vacancies in the Commission.
The President and the Prime Minister will request for applications to be forwarded to the Public Service Commission within fourteen days of the notice and be made by any qualified person; or through an organization or group of persons proposing the nomination of any qualified person. According to the Bill the names of all applicants shall be published in the Gazette. Then the Public Service Commission will convene a Committee comprising of one representative from the Cabinet Office; Office of the Prime Minister; Ministry of Justice, National Cohesion and Constitutional Affairs; State Law Office; Ministry of State for Public Service; and Public Service Commission; for the purposes of considering the applications, interviewing and short listing at least three persons qualified for appointment as chairperson and eighteen persons who qualify for appointment as members of the CIC.
This is probably one of the most transparent ways of appointing public officials. After making the short listing the Public Service Commission shall within seven days forward the names of Chairperson and members of the Commission to the President and the Prime Minister for nomination. The President, in consultation with the Prime Minister, shall then nominate within seven days a chairperson and eight other persons for appointment as chairperson and members of the Commission respectively and forward the same to the National Assembly.
After that the National Assembly shall, within fourteen days, consider all nominations received and approve or reject any nomination. The Bill says upon consideration and approval by the National Assembly, the Speaker shall within seven days forward the names of approved persons to the President for appointment. But if the National Assembly rejects any nomination, the Speaker shall within three days communicate its decision to the President and the Prime Minister to submit fresh nominations.
The Bill explains that if a nominee is rejected by Parliament, the President in consultation with the Prime Minister shall within seven days, submit to the National
Assembly a fresh nomination from amongst the persons short listed and forwarded by the Public Service Commission. The Bill also recommends that in short listing, nominating or appointing persons as Chairperson and members of the Commission, the short listing Committee, Parliament and the President shall ensure that not more than two-thirds of the members are of the same gender. The Bill is certainly drafted in the spirit of the new Constitution.
Even after being appointed to become the boss of the CIC chairperson or a member may be removed from office for misbehavior or misconduct incompatible with the
functions of the Commission. The Bill also makes provisions for the position of a Secretary of the Commission who may be removed by the Commission only for inability to perform the functions of his office arising out of physical or mental incapacity; misbehavior or misconduct; or incompetence.
Among the most important duties of the Commission will be to prepare a progress report every six months and submit the report to the Parliamentary Select Committee and the President. According to the Bill the progress report shall state the progress in the implementation of the constitution; identify any impediments to the implementation of the constitution; recommend any legal and administrative measures to address specific concerns identified by the Commission; and state any other information relating to its function that the Commission considers necessary.
The Bill stipulates that the Commission shall publish the report in the Gazette and in such other manner as the Commission may determine. Apart from that the Commission shall cause an annual report to be prepared for each financial year. It shall submit the annual report to the President and Parliament within three months after the end of the year to which it relates. According to he Bill the annual report shall contain, in respect of the year to which it relates the financial statements of the Commission; a description of the activities of the Commission; such other statistical information as the Commission considers appropriate relating to the implementation of the Constitution; any other information relating to its functions that the Commission considers necessary.
Finally the Bill describes how the Commission shall stand dissolved five years after it is established or at the full implementation the Constitution as determined by Parliament, whichever is sooner, but the National Assembly may, by resolution, extend its life. The Bill says upon dissolution of the Commission under the Constitution the Commission for the Implementation of the Constitution Act, 2010, shall lapse.
Whichever way one looks at the Bill it reflects an excellent job done by Mutula Kilonzo. The country will now very keenly look at Parliament to see which member will try to sabotage the Bill, in which case he or she will have committed political suicide.
In its Memorandum of Objects and Reasons, Mutula explains that the main object of the Bill is to provide for the qualifications and appointment procedure of chairperson and members of the Constitution Implementation Commission established under the Sixth Schedule of the Constitution. He says the Commission is established primarily to oversee the implementation of the new Constitution of Kenya promulgated on the 27th August 2010.
According to the Minister the Constitution establishes a presidential system of Government and in such models, appointment to key offices originates from the Executive. He explains that under Article 250 the role of Parliament is to approve the person nominated by the Executive.
According to the Bill, the Commission for the Implementation of the Constitution (CIC) will have quite a heavy responsibility which will include monitoring, facilitating, and overseeing the development of legislation and administrative procedures required to implement the Constitution; coordinating with the Attorney-General and the Kenya
Law Reform Commission in preparing for tabling in Parliament, the legislation required to implement the Constitution; working with each constitutional Commission to ensure that the letter and the spirit of the Constitution is respected.
The responsibility will also include reporting regularly to the Constitutional Implementation Oversight Committee, which will soon have to be formed by Parliament, on the progress in the implementation of the Constitution; and any impediments to the implementation of the constitution. The duties will also include exercising such other functions as are provided for by the constitution or any other written law.
The Bill sets very high standards for people who will want to serve in the (CIC). Only qualified people can hope to be appointed to serve it. No one can hope to be appointed to the Commission unless he or she is a citizen of Kenya; possess a degree from a recognized university; has knowledge and experience of at least ten years in matters relating to either law, public administration, economics, gender, human rights, or government.
Apart from the above qualifications no one can hope to be appointed to the Commission unless he or she meets the requirements of Chapter Six of the Constitution. Which means whoever is appointed must demonstrates respect for the people; brings honour to the nation and dignity to the office; and promote public confidence in the integrityof the office according to the new Constitution. He or she will be expected to take the responsibility to serve the people, rather than the power to rule them.
According to the Bill the people who will serve in the CIC will have to have had a distinguished career in their respective fields. The chairperson of the Commission shall be a person who is qualified to hold the office of judge of the Supreme Court under the Constitution. The Bill categorically says no person shall be qualified for appointment as a member if such a person is a Member of Parliament; is a member of a local authority; or is bankrupt. Those who served in the Committee of Experts which was appointed under the Constitution of Kenya Review Act, 2008 are also not allowed to serve in the ICC.
No sooner was the Bill to create the CIC published than the country’s three most respected legal institutions – LSK, Fida and ICJ drew up a list of lawyers they thought should not be considered “for the position of Chief Justice when it falls vacant in February”. Though the list of the people the three law institution is supposed to make sure none of them becomes the CJ after Evans Gicheru, the innuendo is clear. Those on the list should also not be considered to serve in the CIC. On the list of the lawyers LSK, Fida and ICJ don’t want to be considered for the post of the Chief Justice are all the current Judges and magistrates “because they have not been vetted”
According to Article 73(2) in Chapter Six of the Constitution the guiding principles of leadership and integrity include selection on the basis of personal integrity, competence and suitability. The people who will serve in the CIC must be those with objectivity and impartiality in decision making, and in ensuring that the decisions they make are not influenced by nepotism, favouritism, other improper motives or corrupt practices.
They must be people who will be expected to provide selfless service based solely on the public interest, demonstrated by honesty in the execution of public duties. According to the Constitution they must also make declaration of any personal interest that may conflict with public duties. They must be people who are prepared to be accountable to the public for their decisions and actions while they remain disciplined and committed in serving the people.
When MPs meet soon to debate on The Commission for the Implementation of the Constitution Bill, 2010 they will find a very comprehensive draft legislation they may not be able to alter. The people will particularly see which members of parliament will want to alter the procedure laid down by Mutula Kilonzo to be followed before hiring members of the CIC. According to the Bill the procedure begins when the President in consultation with the Prime Minister when they declare vacancies in the Commission.
The President and the Prime Minister will request for applications to be forwarded to the Public Service Commission within fourteen days of the notice and be made by any qualified person; or through an organization or group of persons proposing the nomination of any qualified person. According to the Bill the names of all applicants shall be published in the Gazette. Then the Public Service Commission will convene a Committee comprising of one representative from the Cabinet Office; Office of the Prime Minister; Ministry of Justice, National Cohesion and Constitutional Affairs; State Law Office; Ministry of State for Public Service; and Public Service Commission; for the purposes of considering the applications, interviewing and short listing at least three persons qualified for appointment as chairperson and eighteen persons who qualify for appointment as members of the CIC.
This is probably one of the most transparent ways of appointing public officials. After making the short listing the Public Service Commission shall within seven days forward the names of Chairperson and members of the Commission to the President and the Prime Minister for nomination. The President, in consultation with the Prime Minister, shall then nominate within seven days a chairperson and eight other persons for appointment as chairperson and members of the Commission respectively and forward the same to the National Assembly.
After that the National Assembly shall, within fourteen days, consider all nominations received and approve or reject any nomination. The Bill says upon consideration and approval by the National Assembly, the Speaker shall within seven days forward the names of approved persons to the President for appointment. But if the National Assembly rejects any nomination, the Speaker shall within three days communicate its decision to the President and the Prime Minister to submit fresh nominations.
The Bill explains that if a nominee is rejected by Parliament, the President in consultation with the Prime Minister shall within seven days, submit to the National
Assembly a fresh nomination from amongst the persons short listed and forwarded by the Public Service Commission. The Bill also recommends that in short listing, nominating or appointing persons as Chairperson and members of the Commission, the short listing Committee, Parliament and the President shall ensure that not more than two-thirds of the members are of the same gender. The Bill is certainly drafted in the spirit of the new Constitution.
Even after being appointed to become the boss of the CIC chairperson or a member may be removed from office for misbehavior or misconduct incompatible with the
functions of the Commission. The Bill also makes provisions for the position of a Secretary of the Commission who may be removed by the Commission only for inability to perform the functions of his office arising out of physical or mental incapacity; misbehavior or misconduct; or incompetence.
Among the most important duties of the Commission will be to prepare a progress report every six months and submit the report to the Parliamentary Select Committee and the President. According to the Bill the progress report shall state the progress in the implementation of the constitution; identify any impediments to the implementation of the constitution; recommend any legal and administrative measures to address specific concerns identified by the Commission; and state any other information relating to its function that the Commission considers necessary.
The Bill stipulates that the Commission shall publish the report in the Gazette and in such other manner as the Commission may determine. Apart from that the Commission shall cause an annual report to be prepared for each financial year. It shall submit the annual report to the President and Parliament within three months after the end of the year to which it relates. According to he Bill the annual report shall contain, in respect of the year to which it relates the financial statements of the Commission; a description of the activities of the Commission; such other statistical information as the Commission considers appropriate relating to the implementation of the Constitution; any other information relating to its functions that the Commission considers necessary.
Finally the Bill describes how the Commission shall stand dissolved five years after it is established or at the full implementation the Constitution as determined by Parliament, whichever is sooner, but the National Assembly may, by resolution, extend its life. The Bill says upon dissolution of the Commission under the Constitution the Commission for the Implementation of the Constitution Act, 2010, shall lapse.
Whichever way one looks at the Bill it reflects an excellent job done by Mutula Kilonzo. The country will now very keenly look at Parliament to see which member will try to sabotage the Bill, in which case he or she will have committed political suicide.
Friday, September 3, 2010
Constitution: Integrity remains a challenge
Long after the promulgation of the new Constitution in Kenya, the implementation of Chapter Six on leadership and integrity will remain a challenge that will test the seriousness of those charged with the operationalization of the new supreme law. This challenge was accepted by all the leaders as they were celebrating the inauguration of the new Constitution.
At the big celebration on August 27, President Mwai Kibaki was the first to accept that the new Constitution’s leadership code and values made it clear that the people who will present themselves for public or State offices would have to be individuals of integrity, willing to be held accountable by the people and the institutions and laws of our country. That call by the President, was an early warning to all those who, in the past, fought to get leadership positions only for lucrative reasons.
The new Constitution creates very many attractive leadership positions. Among the people who have shown interest in the new positions are well known corrupt politicians. Kenyan MPs who would not serve the country without milking the taxpayers dry are among the first to declare their interests to become future senators and county governors. This time it is not going to be business as usual for them. Before the current crop of leaders occupy the new public offices they will have to prove that they are men and women of high integrity.
The most challenging positions will be those of the 47 Governors who will control huge budgets that must be used to bring about development in all parts of the country. As counties will have the responsibility to give contracts to many service providers, the temptation to engage in corrupt activities will obviously be there. There will be little wonder, therefore, when the positions of governors attract the country’s wealthiest politicians who will only look at the new offices as the geese that lay a lot of golden eggs.
Whereas senatorial positions will be extremely prestigious, they will not be as lucratively attractive as positions of governorships. To get to the Senate, candidates sponsored by the most popular political parties in the counties will stand a better chance of winning than the local tycoons. But very few poor people will win any governorship which will attract people who are already heavyweights financially. The only trouble will be to find any rich individual who has honestly acquired his or her wealth through hard work.
When Mwai Kibaki, therefore, says the new Constitution will ensure current and future leaders entrench integrity and fairness in the just system that will build a world-class public service and promote politics of issue and ideas, only a handful of people who aspire to become senators and governors agree with him. Many of the corrupt leaders wish the President’s words will never come true. The greedy and corrupt politicians will most certainly try to continue occupying leadership positions with the sole purpose of making more money by continuing to milk the poor people.
For the leaders to guarantee that the new Bill of Rights is enforced; and for them to also make sure that a framework is established that makes both the national and county governments work harmoniously, as Mwai Kibaki suggested, the current crop of leadership must undergo a complete metamorphosis. This is as difficult as, to paraphrase Jesus of Nazareth, to expect an elephant to walk through an eye of a needle. It is therefore going to be a real uphill task to hope Kenyan leaders, as Mwai Kibaki expects, will facilitate the success of the Kenyan businesses and industries as well as put in place land ownership and use systems that promote equity and productivity.
Yet Mwai Kibaki was not the only one who sounded these hard hitting warnings during the promulgation of the new Constitution. The Prime Minister did pretty much the same when he urged Kenyans to be vigilant and stop corruption from stealing our future and negative ethnicity from weakening our nationhood. Very much like Mwai Kibaki, Raila asked those in charge of public affairs to make sure that public service becomes what it is supposed to be i.e. public service, but not self service.
According to the Prime Minister this new beginning must mark the end of shallow political partnership and herald the start of mature competition among political parties. What the Prime Minister did not tell the people is the fact that future political parties must themselves undergo yet another metamorphosis.
According to Article 91 of the new Constitution which deals with the basic requirements for political parties, every political party shall have a national character as prescribed by an Act of Parliament which will ensure that all political parties shall have a democratically elected governing body; and shall also promote and uphold national unity while abiding by the democratic principles of good governance which will promote and practise democracy through regular, fair and free elections within the party.
This means the Prime Minister was telling the people that the days of political parties that belonged to corrupt leaders who closed all party doors to their political enemies and opened them only for their sycophants are gone forever. Corruption promoted by tribal political parties will also have to disappear because the new Constitution demands that all political parties must respect the right of all persons to participate in the political process, including minorities and marginalized groups.
The new Constitution demands all political parties to respect and promote human rights, fundamental freedoms, and gender equality and equity while subscribing to and observing the code of conduct for political parties. All these requirements by the new Constitution mean only one thing— that there will be very little room in future party leadership for people who are either corrupt or intend to get into leadership positions through corruption in order to enrich themselves.
President Kibaki and Prime Minister Raila Odinga are not the only leaders who called for the promotion of integrity while operationalising the new Constitution. Vice President Kalonzo Musyoka said more or less the same thing when he told Kenyans at Uhuru Park that under the new Constitutional order, we will be able to reclaim our dignity as a people. He said justice would be guaranteed for all and leaders would be accountable to the people.
As Mwai Kibaki , Raila Odinga and Kalonzo Musyoka were talking about the need to follow the new Constitution’s demands on leadership and integrity , Parliament was challenged to put the Kenyan leaders’ words into practice by refusing to swear in MPs who had pending cases on corruption in court . The suggestion came in a form a question to the Speaker of the National Assembly from the MP for Ikolomani, Dr. Bonny Khaluale.
The Speaker of the National Assembly, Kenneth Marende, answered Khaluale through a Communication from the Chair when he told MPs that Chapter Six of the new Constitution which addresses matters of leadership and integrity was in fact operational after the promulgation of the new Constitution. He explained that, the importance of Chapter Six could not be overemphasized. According to the Speaker this chapter was a key pillar to the new constitutional order seeking to uproot the culture of impunity and bad governance.
Marende said the Chapter sought to ensure that only persons of integrity assented to or remained in certain public offices. It, therefore, was very much in keeping with the letter and spirit of the Constitution that questions should be raised on the application of the provisions of Chapter Six. In respect of concerns about the eligibility to be sworn in of Members who have cases pending in court, Mr. Marende ruled that there was no provision in the Constitution barring a state officer from being sworn in on the grounds that the State officer had a pending court case.
The Speaker then went ahead and swore in all MPs including those with pending corruption cases in court. Be that as it may that was not the end of matter. The issue of leadership and integrity will be a subject of many hot debates in future. When the right judges have taken up their positions in a clean Bench many of our leader’s right to lead will rightfully be challenged according to the new Constitution.
At the big celebration on August 27, President Mwai Kibaki was the first to accept that the new Constitution’s leadership code and values made it clear that the people who will present themselves for public or State offices would have to be individuals of integrity, willing to be held accountable by the people and the institutions and laws of our country. That call by the President, was an early warning to all those who, in the past, fought to get leadership positions only for lucrative reasons.
The new Constitution creates very many attractive leadership positions. Among the people who have shown interest in the new positions are well known corrupt politicians. Kenyan MPs who would not serve the country without milking the taxpayers dry are among the first to declare their interests to become future senators and county governors. This time it is not going to be business as usual for them. Before the current crop of leaders occupy the new public offices they will have to prove that they are men and women of high integrity.
The most challenging positions will be those of the 47 Governors who will control huge budgets that must be used to bring about development in all parts of the country. As counties will have the responsibility to give contracts to many service providers, the temptation to engage in corrupt activities will obviously be there. There will be little wonder, therefore, when the positions of governors attract the country’s wealthiest politicians who will only look at the new offices as the geese that lay a lot of golden eggs.
Whereas senatorial positions will be extremely prestigious, they will not be as lucratively attractive as positions of governorships. To get to the Senate, candidates sponsored by the most popular political parties in the counties will stand a better chance of winning than the local tycoons. But very few poor people will win any governorship which will attract people who are already heavyweights financially. The only trouble will be to find any rich individual who has honestly acquired his or her wealth through hard work.
When Mwai Kibaki, therefore, says the new Constitution will ensure current and future leaders entrench integrity and fairness in the just system that will build a world-class public service and promote politics of issue and ideas, only a handful of people who aspire to become senators and governors agree with him. Many of the corrupt leaders wish the President’s words will never come true. The greedy and corrupt politicians will most certainly try to continue occupying leadership positions with the sole purpose of making more money by continuing to milk the poor people.
For the leaders to guarantee that the new Bill of Rights is enforced; and for them to also make sure that a framework is established that makes both the national and county governments work harmoniously, as Mwai Kibaki suggested, the current crop of leadership must undergo a complete metamorphosis. This is as difficult as, to paraphrase Jesus of Nazareth, to expect an elephant to walk through an eye of a needle. It is therefore going to be a real uphill task to hope Kenyan leaders, as Mwai Kibaki expects, will facilitate the success of the Kenyan businesses and industries as well as put in place land ownership and use systems that promote equity and productivity.
Yet Mwai Kibaki was not the only one who sounded these hard hitting warnings during the promulgation of the new Constitution. The Prime Minister did pretty much the same when he urged Kenyans to be vigilant and stop corruption from stealing our future and negative ethnicity from weakening our nationhood. Very much like Mwai Kibaki, Raila asked those in charge of public affairs to make sure that public service becomes what it is supposed to be i.e. public service, but not self service.
According to the Prime Minister this new beginning must mark the end of shallow political partnership and herald the start of mature competition among political parties. What the Prime Minister did not tell the people is the fact that future political parties must themselves undergo yet another metamorphosis.
According to Article 91 of the new Constitution which deals with the basic requirements for political parties, every political party shall have a national character as prescribed by an Act of Parliament which will ensure that all political parties shall have a democratically elected governing body; and shall also promote and uphold national unity while abiding by the democratic principles of good governance which will promote and practise democracy through regular, fair and free elections within the party.
This means the Prime Minister was telling the people that the days of political parties that belonged to corrupt leaders who closed all party doors to their political enemies and opened them only for their sycophants are gone forever. Corruption promoted by tribal political parties will also have to disappear because the new Constitution demands that all political parties must respect the right of all persons to participate in the political process, including minorities and marginalized groups.
The new Constitution demands all political parties to respect and promote human rights, fundamental freedoms, and gender equality and equity while subscribing to and observing the code of conduct for political parties. All these requirements by the new Constitution mean only one thing— that there will be very little room in future party leadership for people who are either corrupt or intend to get into leadership positions through corruption in order to enrich themselves.
President Kibaki and Prime Minister Raila Odinga are not the only leaders who called for the promotion of integrity while operationalising the new Constitution. Vice President Kalonzo Musyoka said more or less the same thing when he told Kenyans at Uhuru Park that under the new Constitutional order, we will be able to reclaim our dignity as a people. He said justice would be guaranteed for all and leaders would be accountable to the people.
As Mwai Kibaki , Raila Odinga and Kalonzo Musyoka were talking about the need to follow the new Constitution’s demands on leadership and integrity , Parliament was challenged to put the Kenyan leaders’ words into practice by refusing to swear in MPs who had pending cases on corruption in court . The suggestion came in a form a question to the Speaker of the National Assembly from the MP for Ikolomani, Dr. Bonny Khaluale.
The Speaker of the National Assembly, Kenneth Marende, answered Khaluale through a Communication from the Chair when he told MPs that Chapter Six of the new Constitution which addresses matters of leadership and integrity was in fact operational after the promulgation of the new Constitution. He explained that, the importance of Chapter Six could not be overemphasized. According to the Speaker this chapter was a key pillar to the new constitutional order seeking to uproot the culture of impunity and bad governance.
Marende said the Chapter sought to ensure that only persons of integrity assented to or remained in certain public offices. It, therefore, was very much in keeping with the letter and spirit of the Constitution that questions should be raised on the application of the provisions of Chapter Six. In respect of concerns about the eligibility to be sworn in of Members who have cases pending in court, Mr. Marende ruled that there was no provision in the Constitution barring a state officer from being sworn in on the grounds that the State officer had a pending court case.
The Speaker then went ahead and swore in all MPs including those with pending corruption cases in court. Be that as it may that was not the end of matter. The issue of leadership and integrity will be a subject of many hot debates in future. When the right judges have taken up their positions in a clean Bench many of our leader’s right to lead will rightfully be challenged according to the new Constitution.
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