Constitution: Judicial Service Bill meticulous

Just as the MP for Kamukunji, Simon Mbugua, moves to Court to try and stop Parliament from passing the Bill on vetting judges, Mutula Kilonzo has published yet another Bill to establish the Judicial Service Commission (JSC) which will hire, fire and discipline judges as well establish the National Council of the Administration of Justice. The latest legislation is the Judicial Service Bill, 2010. Despite all the noise that is being made to stop the process of implementation of the new Constitution without first creating the CIC, Mutula seems to be moving with the speed of lightening to change the Judiciary according to the new Constitution.

There are many who will doubt his motives. Indeed it is the same Mutula Kilonzo who had expressed the wish that the ICC should now hand the post election violence cases to the local Judiciary. Questions will obviously be asked whether Mutula is moving so fast as to defeat the aims and aspirations of the ICC in Kenya. The answer to that question will probably have to come from Parliament which must debate the new Bills on the Judiciary. As Parliament debates the two Bills on the Judiciary it must also examine whether the motive of legislating them expeditiously is to keep the ICC away.

Mutula is on record claiming the moment judges have been vetted and the police reformed then there will be no need for the ICC. The trouble is that the ICC has gone very far in nearing the actual prosecution of the people it will soon indict in connection with the post election violence. Whereas vetting judges will certainly be very good for the country in removing corruption from the Judiciary, stopping the ICC from prosecuting the few people it has identified from Kofi Annan’s envelop will only have the opposite effect of promoting impunity.

According to the Bill its object and purpose is to ensure that the JSC and the Judiciary shall be the organs of management of judicial services and shall uphold, sustain and facilitate a Judiciary that is independent, impartial and subject only to the provisions of the Constitution and the law. The new law will make sure that the JSC shall facilitate the conduct of a judicial process designed to render justice to all and be accountable to the people of Kenya.

The Bill says the JSC shall facilitate a judicial process that is committed to the expeditious determination of disputes; facilitate a judicial process that is committed to the just resolution of disputes; support and sustain a judicial process that is committed to the protection of the people and of their human rights; promote and sustain fair procedures in its functioning and in the operations of the judicial process, and in particular shall be guided in all cases in which it has the responsibility of taking a decision affecting a judicial officer of any rank or its own employee, by the rules of natural justice.

The JSC shall be the administrative manifestation of the Judiciary's autonomy and inherent power to protect and regulate its own process, achieving these objects through application of principles set out in the Constitution, and other laws. The Bill says it shall be guided in their internal affairs and in the discharge of their mandates by considerations of social and gender equity and the need to remove any historical factors of discrimination; and apply modern technology in their operations.

On standard of service the Bill proposes that in the exercise of the powers or the performance of the functions conferred by this Act, the Commission and the Judiciary shall among others have the technical, infrastructural and administrative competence to ensure that the requirements of the judicial process are fulfilled; adopt quality service as a core principle and, to uphold this principle, the Commission and the Judiciary shall formulate a modern and constantly updated scheme of judicial and other training for all categories of Judges, judicial officers and for the Commission's and staff.

It says the JSC and the Judiciary shall be guided in their activities by the relevant
provisions of the Constitution; uphold the judicial service code of conduct and
ethics as may by regulations be prescribed; be non-partisan and non-political in orientation and operations; promote and uphold honesty and integrity in its
operations, and shall give fulfillment to all values essential for the discharge of judicial functions; and apply and promote such other positive values as the Commission may by regulations prescribe.

The Bill also describes in details the functions of the new Chief Justice which shall include providing the linkage between the Judiciary and the other arms of Government. It says the CJ shall also be the Head of the Judiciary and the President of the Supreme Court . The Bill suggests that the CJ shall assign duties to the Deputy Chief Justice,president of the Court of Appeal, the Principal Judge of the High Court and the Chief Registrar of the Judiciary.

It also says the CJ shall give an annual report to the nation on the state of
the Judiciary and the administration of justice; and exercise general direction and control over the Judiciary. The Deputy Chief Justice shall be the Deputy Head of the Judiciary and the vice-president of the Supreme Court and shall be responsible to the Chief Justice in the exercise of the functions and duties of the office.

The Bill suggests that the president of the Court of Appeal and the Principal Judge of the High Court shall each serve for a non-renewable term of three (3) years. It also suggest that the president of the Court of Appeal and the Principal Judge of the High Court shall in consultation with the Chief Registrar of the Judiciary be responsible to the Chief Justice for the administration of the Court of Appeal and High Court respectively. A Resident Judge and High Court Division Head shall in consultation with the Chief Registrar be responsible to the Principal Judge of the High Court for the administration of their station or division.

According to the Bill the establishment and functions of the Commission and appointment of members shall be in accordance with the Constitution. .The Commission shall consist of members appointed in accordance with the Constitution and the provisions of this Act. Members are to be nominated by the President under Article 171 (2) (h) of the Constitution. The President shall within seven days of the commencement of this Act submit the names of the nominees to the National Assembly. the National Assembly shall, within seven days after it first meets after receiving the names of the nominees consider the nominees and either approve or reject; and notify the President as to its approval or rejection.

If the National Assembly approves the nominees nominated, the President shall, within three days after receiving the notification of the National Assembly, appoint the nominees as members of the Commission. If the National Assembly rejects a nominee submitted by the President, the President shall within three days after receiving the notification of the National Assembly, submit the name of a new nominee to the National Assembly and the provisions of the Act shall apply with necessary modifications with respect to the new nominee.

According to Article 171(2) of the Constitution the Commission shall consist of the Chief Justice, who shall be the chairperson of the Commission; one Supreme Court judge elected by the judges of the Supreme Court; one Court of Appeal judge elected by the judges of the Court of Appeal; one High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates; the Attorney-General; two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates.

One person shall be nominated by the Public Service Commission; and one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly. The Chief Registrar of the Judiciary shall be the Secretary to the Commission. Members of the Commission, apart from the Chief Justice and the Attorney-General, shall hold office, provided that they remain qualified, for a term of five years and shall be eligible to be nominated for one further term of five years.

The Bill also describes the transparent manner in which judges and other judicial officers will in future be appointed, removed or disciplined. It also describes how the National Council on Administration of Justice will be established and who will be its members.According to Mutula Kilonzo the principal object of this Bill is to improve the provision of judicial services and administration of justice.

In its memorandum of objects and reasons the Minister says it achieves this by reconstituting and incorporating the Judicial Service Commission, modernizing and expanding its functions including clearly articulating the procedure for appointment and removal of judges, and discipline of other judicial officers and staff. Mutula says the Bill also enhances the Commission’s as well as the Judiciary’s operational and financial autonomy. And to ensure a coordinated, efficient, effective and consultative approach in the administration of justice and reform of the justice system, the Bill establishes the National Council on Administration of Justice.