By Yash Ghai and Jill Cottrell Ghai

Guest writers

Few constitutions have been fully enforced without the help of the Judiciary.

In the US, the Supreme Court asserted its authority to interpret and enforce the constitution; the access to it and its voluminous jurisprudence has been at the heart of constitutionalism.

In recent decades, countries, which excluded the Judiciary from interpretation or enforcement of the constitution, have allowed judicial review of constitutionality, often in a special constitutional court.

In the past, Kenya’s efforts to establish the rule of law have failed because many of our judges have been corrupt or incompetent.

Realising the centrality of judicial review, the CKRC made two important decisions, which found their way into the new Constitution: It gave the Judiciary increased powers to interpret and enforce the Constitution, and a fundamental restructuring of the courts.

Restructuring involved establishment of a new Supreme Court, vetting judges and magistrates, and an independent Judicial Service Commission (JSC).

The current Chief Justice should retire on February 27, next year, to pave the way for judicial reforms.

Develop law

The Judiciary has considerable responsibility for interpretation and enforcement of the Constitution, which seeks to guarantee access to justice for all "irrespective of status". Liberal rules of standing are adopted, to the extent that any person, "acting in the public interest" can institute proceedings. Courts make socio-economic rights enforceable. The Chief Justice is required to make rules to ensure ready access to courts, not to deny justice merely on technical grounds, waiving of fees in the case involving human rights, and to consider a complaint of violation of constitutional rights even if the documentation is informal.

The Supreme Court is given the jurisdiction to give advisory opinions at the request of the national government, any State organ, or a county government. The Judiciary is required to develop the law where the existing one does not provide protection of a constitutional right and it must interpret the Constitution to enhance its values and principles. The courts financial independence is also greatly enhanced.

The Judiciary, as other State organs, have the duty to "address the needs of vulnerable groups within society, including women, children, youth, members of minority or marginalised communities and members of particular ethnic, religious or cultural communities".

The right to fair administrative action gives the courts a specific role in administrative law and practice. Any person before court must be given free legal representation.

This week, Parliament will consider two Bills, seeking to implement critical provisions of the Constitution. One deals with the immediate problem of judicial reform by vetting and if necessary, removing existing judges. The other deals with the long-term need for independent, competent and brave judges.

Vetting board

The Bills are the most important steps so far in the implementation of the Constitution. The former will ensure judges are honest and competent, benefit from continuing legal education, and are subject to a proper and fair system of accountability under the JSC. It is a complex Bill, which requires careful consideration. But this article deals only with the vetting of judges.

The Bill is a considerable improvement on the first draft. It defines the qualities judges must have. Apart from professional qualifications and integrity, judges must use common sense, be courteous, and understand the context in which justice is administered, and personal prejudices should not influence their decisions. The Bill aims to provide an independent procedure for vetting of judges. However, there are a few points which are worrisome and which Parliament must address.

The most serious is that the vetting Board is apparently in charge of both investigation of allegations against the judge and then the formal hearing of the defence of the judge. It may decide on what material to look at, what witnesses to hear, and any other way to inform itself to discharge its task.

There is considerable risk that the Board might be prejudiced against the judge, and having formulated charges against him or her on the basis of their own investigations, might be reluctant to depart from its initial finding. It would be much better to have investigations done by another body, and the formal hearing by the Board to proceed on the basis of charges brought by that independent investigative body. The timing is also a problem. One year is too short, even given an extra two months of preparation. Finally, should not the consideration of the charges be done in public (although the probe would have to be confidential), if only to enhance public confidence in the process?