What judges want BBI to change in the referendum

Building Bridges Initiative Chairman Yusuf Haji, Vice Chair Adams Oloo and Secretary Paul Mwangi (right) address the media in Nairobi on July 15. [File, Standard]
Judges and judicial officers have recommended a raft of constitutional changes to the Building Bridges Initiative, an indication that the Judiciary has been allured by the task force.

In their memorandum that was quietly passed to the BBI through the Judicial Service Commission (JSC), the judges want the State to use political means to fight corruption as opposed to over-relying on courts.

The judges want more time to determine presidential election disputes, Supreme Court judges increased and all laws relating to integrity reviewed. They argue that the Judiciary’s budget should be capped at 3.5 per cent of the national budget.

The submissions are the biggest indicator that JSC, an institution dominated by judges, has been allured by BBI, a creation of President Uhuru Kenyatta and former Prime Minister Raila Odinga. The two were the main protagonists in the 2017 General Election.

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“The Executive and Legislature should, just like the Judiciary has done, use fair but firm and decisive administrative action to deal with corruption within its ranks. The over-reliance on criminal justice system is slow, and sometimes not as effective as it should be, given the heavy evidentiary burden,” the Judiciary says while passing the buck in the fight against corruption.

They say the 14 days accorded to the Supreme Court judges to hear and determine a presidential poll dispute is not enough for them to come up with a “reasoned decision”. They want 30 days like it happens in Uganda and the number of judges increased from seven to 11.

The judges are also seeking greater control in discipline of their own. They say the framing of the current constitutional provision has led to infractions being taken down the tribunal route even when they could be handled by the JSC.

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“At 154, the number of judges is far too few to serve a population of 50 million Kenyans. It is desirable that the JSC is given flexibility to determine, from time to time, what number of judges would be appropriate to deal with the volume of work at any one time,” says the JSC.

In justifying the 3.5 per cent budget demand, the JSC says their workload and expectations have been increasing while funding decreases. They do not want the structure of the JSC changed or the constitutional provisions on Judiciary independence tinkered with.

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They however want subordinate courts, including Kadhis Courts and tribunals as well as courts of similar status to the High Court (land and environment and employment and labour) allowed to participate in JSC elections.

They also want the identities of the Judiciary and the JSC separated where the Chief Registrar of the Judiciary will no longer act as Secretary to the JSC. Further, they want a minimum percentage of Judiciary budget committed to JSC through the law.

To clamp down on disobedience of court orders, the judges want the Leadership and Integrity Act and the Public Officers Ethics Act amended to provide that failure to comply would lead to ineligibility for or loss of office.

“The JSC recommends the enactment of a new Contempt of Court Act that recognises the importance of obedience to court orders and imposes appropriate penalties,” the proposal says.

The judges also claimed they were appalled by the anti-corruption laws that provide for low fines, leading to unnecessary attacks against the Judiciary.

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They cited the Housing Levy Regulations which provides for imprisonment for a term of two years or a fine not exceeding Sh10,000 if one misappropriates any funds or assets of the housing funds.

In other proposals, JSC wants the minimum years of experience qualifications for judges under Article 166(3) differentiated and enhanced so that High Court judges have 10 years, Court of Appeal 15 and Supreme Court 20.

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BBIJudiciaryBuilding Bridges InitiativeConstitutional reforms