BY MOSES CHELANGA
Like Caesar’s wife, judges and magistrates must be above suspicion, an otherwise yard stick shall bring to disrepute administration of justice. Historically Judges and Magistrates are placed on a higher pedestal and nothing short of integrity, efficiency, high moral standing, fairness and justice is expected of them.
It is unfortunate that the past and may be the present Kenyan Judiciary falls short of this thus informing the framers of the Constitution of Kenya 2010 to provide for vetting of the judges and magistrates holding office as at 27 August 2010 to determine their suitability to continue holding their respective judicial positions.
The Vetting of Judges and Magistrates Board is now constituted with draft regulations in place guiding the conduct of its business. This is a step towards the constitutional implementation long race within the judiciary after appointment of more judges and constitution of the Supreme Court.
Whereas the mandate of the board is clearly cut out by the Vetting of Judges and Magistrates Act, it should guard itself from the fatal mistakes of the infamous radical surgery where it was reported that both the surgeon and the patient died at the surgical table.
The scope of the duty of the board is wide and deep, in determining the suitability of judges and magistrates shall consider the affected officer’s past track record, pending cases and complaints against them, professional competence, integrity, temperament and commitment to public service. In doing so, it shall receive written memoranda, complaints and presentations from the members of the public on the conduct of sitting judges and magistrates. Admittedly Kenyans deserve a better judiciary.
On the other hand, the board is to be guided by the principles and standards of judicial independence, natural justice and international best practice to safeguard both the interest of the public and also the rights of the judicial officers in question.
I am however apprehensive of the new school of thought in town which deems all the judges and magistrates in office before promulgation of the Constitution to be guilty as charged, they are unfit for purpose and ought to be jettisoned without a second thought. This school is partly attributed to the Judicial Service Commission if its recently completed interviews are anything to go by. A keen observer of JSC’s interviewing process will agree with me that most of the time was scandalous and unnecessary. Why for example would a magistrate take blame for acquitting an accused person when the prosecution did not prove its case to the required standard? Or a judge being blamed for developing new jurisprudence or sticking to existing ones?
The vetting board should desist from pontificating on the law. In the practice of law, we more often than not hold different opinions, if all lawyers reason alike, then all the law schools should be shut down. Judges and Magistrates equally make their decisions based on the facts before them and exercise their discretion judicially applying their legal minds; a judge cannot be faulted for making decision in a certain way or following certain justifiable legal philosophy unless he is way off line in law. It is common to have judges writing different opinions on the same legal issue. This makes not the majority or the minority of the court less suitable to continue holding judicial office. The vetting board should therefore not arrogate appellate powers against the decision of the judges and magistrates under vetting, the appeal process, if any, lies elsewhere.
The board should also guard its process from abuse. There will be individuals whose interest is purely vindictive and ill intended, you can take it to the bank. The board should by no means allow its process to be abused by self-serving busy bodies. There will be an attempt to remove “non-user friendly”, “non-compliant” and otherwise good judges and magistrates. There are sitting judges and magistrates who may have made unpalatable, painful and right decisions such as condemning rendition of Kenyans to Uganda or any “Guantanamo Bay”, holding that Kenyan courts lack jurisdiction to try piracy related cases, making decisions against major banks and international corporations or even against the executive. The interested parties herein shall stop at nothing to weed judiciary of these “bad boys”, the board should scatter this attempt to the four winds even if the heavens fall. It should forestall the imminent Orwellian Animal Farm.
I have no brief from any judge or magistrate about to be vetted but I believe that there are still good judges and magistrates who were in office on or before 27th August 2010 and they should not be crucified through a botched up and skewed process. Reading the draft regulations, one would be made to belief that it is bent to condemn the judges and magistrates, they are already put in their defence, the burden of proof is shifted to the affected judge or magistrate, the adversely mentioned judicial officers have no opportunity to cross-examine the complainants, the board has no power to summarily dismiss frivolous complaints such as delay in delivery of a ruling, who doesn’t know that the judiciary was highly understaffed and grossly overworked and delivering a ruling in time was a miracle?
Interestingly, despite the system branded inept and corrupt, lawyers have eked out a living out of it and successfully so, does it then mean that the lawyers who practised law in the system are equally corrupt and should be disbarred or prosecuted? The pendulum swings both ways, if a judge received a bribe, there must a giver or an intermediary who should equally be sanctioned. I expect that along finding that a judge and a magistrate being found corrupt, there ought to be a corresponding finding and recommendation to prosecute or further investigate a third party including subjecting my learned friends through a disciplinary process. It would be fool hardy to say we don’t have black sheep within the legal profession who thrived through the rot.
The departure between the board and JSC is that the board’s proceedings are in camera and as opposed to JSC’s open public proceedings and therefore there cannot be a room to play to the gallery instead of fleshing out the real issues. The gravity of the board’s proceedings is that it encroaches to the rights and freedoms of the sitting judges and magistrates which are equally constitutionally guaranteed as much as Kenyans are thirst of reformed judiciary.
(The author is an Advocate of High Court of Kenya and a Legal Consultant, Email:[email protected])