PROF PATRICIA KAMERI MBOTE
The on-going attempts to improve justice delivery in Kenya are laudable because there is a need to ensure respect for the rule of law for real reform to take place. The law and justice sector is critical in this endeavour.
In an effort to restore public confidence in the Judiciary, the new Constitution requires Parliament to enact a law establishing mechanisms and procedures for vetting the suitability of judges and magistrates to continue to serve in accordance with the values and principles established in Articles 10 and 159 of this Constitution. Already, a sub-committee of the Cabinet has approved a bill, the Vetting of Judges and Magistrates Bill 2010 (the Vetting Bill), which will soon be presented to Parliament for enactment into law.
The Vetting Bill should be subjected to public scrutiny for the simple reason that it is critical to the establishment of an accountable Judiciary that commands the confidence of the public. In particular, the Bill raises two fundamental and inter-related questions: how and by whom should judicial officers be vetted and how should they be vetted?
On the first question, the Constitution can be read in two different ways. On the one hand it requires the establishment of an ad hoc mechanism for vetting judges and magistrates. This is the option that is favored by the Coalition Government. Thus the Vetting Bill proposes to establish a Vetting of Judges and Magistrates Board, whose function will be to inquire into and determine the suitability of serving judges and magistrates to continue serving in the judiciary. It is envisaged that the Board will be dissolved within thirty days of the execution of its mandate.
On the other hand, we can read the Constitution as enabling a reconstituted Judicial Service Commission (JSC) to vet judicial officers. Such a reading of the Constitution is supported by two of its provisions. Firstly, the functions of the JSC under Article 172 include receiving complaints against, investigating, removing from office and disciplining judicial officers. Vetting of judicial officers will necessarily involve receiving complaints against, investigating and removing persons from office. Whatever body is charged with this task should resonate as closely as possible with the JSC. Secondly, the Sixth Schedule of the Constitution requires the establishment of a reconstituted JSC within 60 days after the effective date. This provision demonstrates a desire of the drafters to reconstitute the JSC, so that it can perform its functions, including facilitating the accountability of the Judiciary, and restoring public confidence in courts.
The Vetting Bill raises two important concerns. First, how can the process of vetting judges and magistrates be sustained? And second, can the work of judges and magistrates be evaluated in isolation from the work of other actors in the justice system?
On the issue of sustainability, a potential problem with the approach of the Vetting Bill is that it establishes a time-limited process that is not conducive to building the institutional capacity of the Judiciary to police itself. Apart from its commendable due process mechanisms, this ad hoc approach can therefore be compared to the radical surgery of 2003, which resulted in the removal of judges without enabling the Judiciary to institutionalize mechanisms for handling complaints against judicial officers. It is for this reason that it would make more sense to task a reconstituted JSC with the responsibility of vetting judicial officers.
The vetting mechanism should be located in the body that will henceforth be pivotal in the appointment and evaluation of the performance of judges and magistrates, namely the JSC. For this approach to command the support of the public, it would be desirable for the current Chief Justice to relinquish this office within 60 days after the effective date, to allow the appointment of a new Chief Justice who can then chair the JSC with legitimacy.
The other concern arising from the Vetting Bill relates to evaluating judges and magistrates in isolation from other actors in the justice system. For a long time the legal and judicial sector has been the subject of complaints from the members of the public. This has eroded confidence in the justice system. However, when people express absence of confidence in the Judiciary, their complaints are leveled against an array of actors who they perceive as linked to the Judiciary.
If real reform is to take place in the legal and justice sector, vetting should not be limited to serving judges and magistrates. It must go to the next level of vetting aspirants for judicial office to ensure that they have the requisite qualities. That like Caesar’s wife, they are above reproach. Indeed the stock from which we will draw new judicial officers is the same one that serving judges were drawn from – lawyers and legal academics.
A question also arises as to who should do the vetting. The Vetting Bill proposes that the vetting will be done by a Board, consisting of a Chairperson, Deputy Chairperson and seven other members. These seven members are to be nominated by the Law Society of Kenya, the Federation of Women Lawyers, the International Commission of Jurists, the Kenya Private Sector Alliance, the Supreme Council of Kenya Muslims, the Kenya Episcopal Conference, the National Council of Churches of Kenya, the Evangelical Fellowship of Kenya, and the Hindu Council of Kenya. These provisions are deficient for two reasons.
First, it is not clear how these various organizations have been selected to nominate the members of the Board. In the absence of objective criteria justifying their selection, one can only surmise that these are privileged lobby groups, and which do not necessarily champion the public interest in the establishment of an accountable Judiciary.
We cannot therefore rule out the plausibility that these organizations will merely pursue parochial interests in nominating individuals to serve on this important Board. Accordingly, we need to establish procedures and mechanisms for vetting these organizations to ensure that they espouse the values of the Constitution, and only select individuals who will champion the public interest. In this regard, we can learn from Tanzania’s law establishing the Commission of Human Rights and Good Governance Act, which provides inclusive mechanisms for appointing members of the Commission.
Secondly, the idea that the Law Society should nominate members to serve on the Board is problematic. As we have noted, our justice system is adversarial, which means that the quality of justice in large part depends on the quality or competence of advocates. It would thus be unfair to vet judges and magistrates without assessing the role that practicing lawyers play in the administration of justice.
Indeed, this fact introduces an element of conflict of interest with respect to practicing lawyers purporting to vet judges, for the simple reason that they are interested parties.
The writer is a dean, faculty of law, Strathmore University.