NAIROBI, Kenya, Sep 30 – Kamukunji legislator Simon Mbugua on Thursday moved to court seeking to stop the impending vetting of judges and magistrates as envisaged under the new Constitution.
Mr Mbugua claims that that Section 23 of the Sixth Schedule which requires Parliament to enact a Vetting of Judges and Magistrates Bill was in conflict with Sections 160, 167 and 168 which provides for an effective and competent Judiciary.Mr Mbugua further argued that the vetting process would be open to manipulation by the Executive.
"The removal of the judicial officers will bring in political appointees," Mr Mbugua said in documents to support his case.
The MP contends that the vetting of the judicial officers constituted the unlawful suspension of some sections of the Constitution and would compromise the supremacy of the Constitution and the Bill of Rights.
He argued that through the vetting, the judiciary would be shut out from and intimidated against involvement in the implementation of the Constitution and in the end, the process would be done in accordance with the self-serving interpretation by Parliament and the Executive.
It is his argument that vetting is conducted to appoint persons to office and not to confirm their suitability to positions they already hold.
“If you want to remove from office a serving officer you invoke a removal process but not to vet them,\’\’ he states.
Consequently, the MP wants the implementation of the new Constitution and appointment of judges and magistrates put on hold pending the hearing and determination of the petition.
Mr Mbugua said that the implementation of the Constitution during the suspension of the independence of the Judiciary amounted to taking over judicial powers by the Executive and legislative arms of Government, which would compromise the rule of law and integrity of the new Constitution.
He argued that during the period during which judges would be undergoing vetting, there will be no effective judiciary because “the judges will be too busy defending their reputations, about their character and competence.\’\’
Through lawyer Kibe Mungai, Mr Mbugua contends that suspension of Section, 160, 167 and 168 of the Constitution compromised the right of litigants to protection of the law and fair hearing in respect of pending cases.
The MP further avers that the new Constitution will be meaningless unless Kenyans can be guaranteed of an independent Judiciary to enforce their rights and question how the constituent is being implemented and state power exercised.
Articles 160-172, he adds proved for the existence of a competent and effective Judiciary but Sections 23 and 24 takes away or delays its existence until the politicians are done with the implementation of the new Constitution.
The case went before Justice Jean Gacheche in the afternoon who certified it as urgent and sent the file to the Chief Justice to appoint a bench to hear it.
She instructed Mr Mbugua’s lawyers to serve the Attorney General with the suit papers forthwith.
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