In a nation governed by the rule of law, it falls on the Judiciary to ensure that everyone plays by the rules, and when violations are detected, that it offers an unbiased mechanism to arbitrate the conflict. With all due respect to my senior, John M. Khaminwa, and recognising that he is an eminent authority on constitutional law, I must disagree with him regarding the vexed question of the vetting of judges (Why I am against vetting judges, Nairobi Law Monthly, November 2010). In his submission, he attempts to argue that the Sixth Schedule to the Constitution does not form part of the Constitution of Kenya. He goes further to argue that there will be chaos and anarchy should judges and magistrates preside over trials while their vetting is pending. He argues that the fact that many of the judges and magistrates have yet to be vetted, their status is unclear and that as a result they are incapable of rendering fair, impartial verdicts. He admits that in prior years, the Judiciary has fallen prey to the machinations of the executive and that certain judicial officers were partial and biased.
The Constitution of Kenya creates the Judiciary in Chapter Ten. It also provides for the mechanism for the creation of the Judicial Service Commission and the vetting of Judges and Magistrates in the Sixth Schedule. If we accept the argument that the Sixth Schedule is not part of the Constitution, then the vetting of judges and magistrates will be ultra vires the Constitution. But, I intend to argue that the Sixth Schedule is part of the Constitution and that the vetting if judicial officers is not ultra vires the Constitution, but that it is an integral part in the reform of the Judiciary; as integral as the reform of the Executive has been through the ratification of the Constitution.
The Constitution of Kenya is the result of both a revolution and evolution of Constitutional Law in the country. Until the demise of the KANU regime in 2002, Kenyans did not have truly free hand in deciding their political destiny. The governments of both President Moi and his predecessor, President Kenyatta, lorded it over the citizenry, abusing the provisions of the old Constitution, amending it almost at will to entrench power in the presidency at the expense of the other arms of Government. One of the pernicious effects of this situation was the absolute subsuming of the Judiciary to the wants and needs of the Executive. The situation at one time was so dire that the Executive dictated the hours in which the courts would operate and the nature of their verdicts. Instances are recalled by victims of the Executive's excesses of courts sitting in the dead of night and prosecutors dictating prison terms which 'enemies or the state' would serve.
As a student at the Kenya School of Law, I was regaled by stories of patently unqualified advocates being appointed to the Bench without their knowledge or any form of vetting for that matter. Paul Musili Wambua, our civil procedure lecturer, recalls an instance where an advocate from Meru, who had charges of misappropriation of client funds made against him being appointed to the Bench. As was customary at that time, when he saw the Administration Police approach his home to inform him of his appointment, the man panicked and took off like a shot fearing that they had come to arrest him. It is impossible to know how many of these judges or magistrates were so appointed and only an impartial process of vetting can identify the beneficiaries of Executive fiat.
Mr. Khaminwa argues that the suitability of judicial officers to serve on the Bench will be determined by the Judicial Service Commission, the Chief Justice, the Chief Registrar and other officers appointed under the Constitution. He adds that it would be wrong to subject the to an additional procedure that would, in effect, embarrass the Judiciary at this critical juncture. He argues that it is better for the Judiciary to reform itself rather than have outsiders do it. If all that mattered was the image of the Judiciary, then it would be simplicity itself to ask for the Judiciary to be principled enough to ensure that rogue elements were eliminated and only upstanding officers continue to serve. This misses the point.
We all recall the fiasco that was the radical surgery conducted under the aegis of retired High Court Judge Aaron Ringera. Its effect, rather than to clean up the Augean stables, was to entrench impunity within the ranks of the Judiciary. In that instance, an insider was tasked with the responsibility of identifying judicial officer unfit to wear the robes of judges and magistrates. Instead, the process gave rise to instances where the radical surgery targetted judicial officers for political and other reasons. Kenyans took the opportunity to take their vendettas to the tribunals constituted to consider Ringera, J's list. In the end, the Judiciary was not reformed. I submit that a reason why the radical surgery failed is that it was not carried out under the rubric of a well-defined legislation and as a result, 7 years after his actions, we still have appeals pending where judicial officers challenged their dismissals and are fighting to reclaim their former positions of glory.
The vetting of the Judiciary is vital to reforming the Judiciary. A legal maxim holds that a man shall not stand judge in his own cause and it should be applied to the Judiciary too - the Judiciary is incompetent to undertake the massive reforms needed of its own affairs. It requires the intervention of an outside force to do so. The JSC is the right vehicle, established by law and operating under clearly defined rules of procedure. The JSC, as envisioned under the Constitution, is the most representative body in the history of the administration of justice in Kenya. If the National Assembly draws up the proper rules of procedure for its operations, it will do more to reform this Judiciary than any other body. The chaos that Mr. Khaminwa anticipates in litigation will pale in comparison if the integrity of the Judiciary continues to be in doubt. It is also notable that with regards to serving judicial officers, this process shall be a one-off affair. Once they have been cleared by the JSC, there will be no doubts remaining as to their suitability for judicial office.
Finally, I must join with Mr. Khaminwa in calling for the quick constitution of the JSC for the sole purpose of expanding the ranks of judicial officers from the current 44 to his proposed 250. The media has reported on the great backlog of cases in the Judiciary ad an expansion of the ranks of the judiciary should take care of all pending suits and ease the burden on judicial officers. In the long run, as with all matters of national importance, the money and resources will be found to support the expanded judiciary.
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