I rarely get to agree with Donald B. Kipkorir, but I must say that this Sunday he is spot on (By churning out lists of potential CJ, judges, lawyers are scandalising the profession, Sunday Standard Oct. 3, 2010). Contrary to received wisdom it is not just lawyers who are best placed to proclaim who are best to take judicial office. This is a task that should also be accomplished by all consumers of judicial services in Kenya. After all, when judges proclaim law by interpreting the constitution, they do so on behalf of all Kenyans, affecting one and all from their lofty perches on the Bench.
It is quite obvious that the best candidates for judicial office would be experienced and learned lawyers. However, lawyers have a maxim that declares that no man can be a judge in his own cause and it would behoove the legal profession to heed this maxim in all its import. The Law Society of Kenya is the one of the most important institutions in Kenya, regulating the legal profession for the benefit of the nation. But on this matter, to give them prominence in the vetting process, something is bound to give. The judges and magistrates have a legitimate gripe when the LSK purports to draw up lists of approved professionals for the judicial offices that are to be created under the Constitution. This is the reason why the appointment of the reconstituted Judicial Service Commission and the board that would vet judicial officers should be speeded up. Even the LSK will admit that where there is a judicial officer found wanting, a lawyer will not be far behind. It takes two to tango and there must be a conduit for the misconduct of the judicial officers who shall be unmasked and it is reasonable to expect that some lawyers will be implicated. The judges and magistrates have a right, too, to expose the rotten tomatoes in the legal profession. Only then can this process be said to be as complete as we could wish.
Mr. Kipkorir is right to make comparisons with famous judges fro the USA and the UK. After all, the judiciary in Kenya is a reasonable facsimile of those of developed common law democracies. Therefore, it is reasonable to demand that those who wish to occupy judicial offices be men and women of probity, sagacity, and experience, capable of making rulings and handing down judgments that reflect these qualities. When President Moi engineered the appointment of Zaccheus Chesoni as our first back CJ, he exposed the rot that permeated both the Bar and the Bench and the Constitution is the opportunity that Kenyans have been waiting for to participate fully in choosing the people who deserve to be named to these positions. We must also reconsider our legal education system to ensure that we make the lawyers and judges that we want. The CLE programme of the LSK is a valuable tool in this regard and it should be enhanced and deepened to ensure that all practicing advocates upgrade their skills-sets and knowledge to better serve their clients and their profession.
It is imperative that we move away now from the tit-for-tat farce that is being played out in the question of vetting judges and magistrates. We must embrace the fact that we are all flawed and that NONE of the tainted men and women of the legal profession should be allowed within a hundred miles of judicial office. We must find a way of incorporating the thoughts and experiences of the wider public in the quest for a credible judiciary. We must also allow the public to become active participants in regulating and disciplining of the bar and the Bench to ensure that the administration of justice benefits all Kenyans, and not just the fat cats of the fat wallet society.
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