Law review: Judges could face screening

By Jibril Adan

If High Court and Appellate judges celebrated when Parliamentary Select Committee threw out Committee of Expert’s recommendation they be sent home pending vetting, it may have been too early.

Sources familiar with CoE scrutiny of PSC political agreements during the Naivasha retreat last month, report the recommendation has generated heat with members arguing it was against the grain of popular public opinion.

It cannot at this stage be ruled out CoE may still ignore PSC and retain the clauses requiring judicial officers to reapply for their jobs when the new constitution is promulgated. CoE is said to be considering whether it should reinsert the clause that requires judges of the Industrial Court, High Court, and Court of Appeal to be subjected to vetting to weed out the corrupt and incompetent.

CJ Evan Gicheru (right) with judges at a Judiciary event. [PHOTO: FILE/STANDARD]

This means judges may need to wait and toast to high heavens only after the final draft is presented to Parliament and it does not have the go-home clause.

Sources revealed CoE was baffled by PSC’s decision on judges, which though not binding, enhances success of the draft at referendum because of prior political agreements of the two main blocs of the Coalition.

PSC met in Naivasha two weeks ago to fine-tune the Revised Harmonised Draft and made some changes to the CoE proposals.

Our source explained: "We do not understand why PSC altered the section. We want them to explain to us what informed their decision."

He said the issue forced the experts to request for a meeting with PSC on Wednesday next week.

"We want them to share with us the reasons behind some of the decisions they made. On our part we relied on previous documents that contained views collected from Kenyans,’’ he said. The CoE does not, however, have a problem with the consensus reached on the ‘pure’ presidential system, which PSC proposes.

Political settlement

"We do not have a problem with the settlement PSC has had on the Executive. It is a political settlement that we do not have a problem with," said a member of the CoE on condition of anonymity because of the secrecy with which the harmonisation of PSC’s and CoE’s work is being done.

The draft submitted by the CoE originally proposed a hybrid system of government.

At the meeting next week, the constitutional experts are expected to raise other issues relating to changes the MPs made in Naivasha.

Besides the vetting of judges, CoE is said to be unhappy with changes made to the Bill of Rights. "The issues we are going to raise with the PSC are those that are close to the hearts of Kenyans and whose removal from the draft has raised concerns," said the expert. A committee member said some PSC decisions, including their change on the Chapter on the Judiciary, would be "interrogated" by CoE because "they go against the wishes of Kenyans".

When the draft was first released last year, judges opposed the recommendation that they should be subjected to vetting.

In December, eight judges, on behalf of the Judiciary, prepared a document pointing out areas they did not agree with in the draft. They argued the provision presumed all of them were guilty of corruption.

The same provision was in the Bomas Draft, but was rejected following protests from a cross-section of delegates.

Besides the contentions over whether judges should be vetted, the draft makes proposals that are expected to improve the Judiciary. For instance, it recommends the Judiciary takes control of its finances and will not have to depend on the Executive to determine its budget.

This means the Judiciary would be allocated money from the Consolidated Fund, but the head of the Judiciary would administer its usage.

According to the proposals made by PSC, the Clerk will only be removed from office through a tribunal appointed by the Parliamentary Service Commission, if the new law was enacted. This puts the office holder in same league as Chief Justice, judges and Attorney General, or heads of constitutional commissions — who can be removed only through a tribunal.

PSC recommended that Parliamentary Service Commission, which looks at the welfare of parliamentary staff, should institute a tribunal when one feels the clerk should be removed. A number of other concerns have been raised about some of the recommendations the committee made.

PM Raila Odinga led protests against the proposal to increase the number of constituencies by 80.

But a section of politicians, mainly MPs from Central Province, have spoken against Raila’s stand, arguing some regions were underrepresented. PSC chairman Abdikadir Mohammed on Monday defended his committee saying that they gave their best shot.

Public interest

He said the Naivasha accord was for the good of the country. The chairman said the 26 members focused their contributions and resolutions on the wider public interest, which some wanted addressed in the draft.

"Kenya has over 40 million people and it is not possible to come up with document that would have been accepted 100 per cent. We welcome the criticism directed at our work, but those raising questions should be ready to give and take for the country to move," said the chairman.

Reached for comment on the road to a new constitution, CoE Executive Director, Ekuru Aukot said he was happy with the progress so far.

"The mood is right for us to give Kenyans a new constitution and there has been no delay in the schedule that we set out at the beginning," he said. But he could not comment on the progress so far in trying to integrate PSC’s agreements without diluting public views.