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.