Judicial officials spell out terms for scrutiny

By Jibril Adan

Amidst rising uncertainty over their jobs, judges and magistrates have spelt out the terms under which they want to be vetted as a precondition for retention in service.

The two groups, however, insist "we shall boldly present ourselves for such vetting so that confidence in the Judiciary is restored".

They ask that the process not be a repetition of the shambolic "radical surgery of 2003", and want payment in full of terminal and other benefits, and golden handshakes and special benefits pegged on years of service for those who will either fail the test or opt not to go through it.

According to a press release by the Kenya Magistrates and Judges Association (KMJA), what is worrying the judicial officers most is the fact that the new Vetting of Magistrates and Judges Bill sets a higher threshold for retention in service than the Constitution.

"While we still affirm our submission to any vetting mechanism, the same should not be allowed to go against laid–down standards of our Constitution,’’ they said.

High Court Judge Justice Isaac Lenaola chairs KMJA.

The Judges and Magistrates in their 14-point statement also called for flexibility in dealing with them and the opening of a small window to allow retention of those found to have committed "minor indiscretions".

"We propose that special provisions be considered for dealing with minor indiscretions that do not amount to transgressions warranting removal, and offer appropriate remedies including but not limited to setting conditional terms for retention," they said.

The privileged group which has to be vetted under the rigorous judicial renewal programme set out by the Constitution promulgated last August said it would only submit itself to a "fair, credible and just" vetting process. The exercise, they insist, must uphold, "the principles of natural justice and the standards set out in the Bill of Rights as enshrined in the Constitution."

Besides testing their professional competence and probing whether there are any official complaints against them, the board to vet judicial officers is also to test them on many fields including written and oral communication skills, temperament, common sense, life experience and demonstrable commitment to public and community service. The judicial staff though insistent they are not against the vetting process, demands that the exercise must be fair, just, and devoid of witch-hunting.

They also want it conducted, "in a way that dignifies judicial officers and bestows confidence in the institution of the Judiciary."

Radical surgery

In what could be seen as a sign of rising anxiety over how the process will be conducted, KMJA insists that unlike the 2003 purge presided over by Justice Aaron Ringera, it should not be seen as "a witch-hunt or a cleansing exercise that targets certain specific judicial officers."

The team also wants Parliament to pass the necessary laws to guide the vetting process, which they want conducted in a dignified manner, so that judicial officers can continue with their work without continuously looking over their shoulders. The association’s members held a council meeting on Friday.

They want the process not to be either prolonged or rushed in a manner that would be detrimental to those who opt to be subjected to probe.

The association also wants the vetting law to create room for those who opt to retire without going through vetting to do so comfortably. To facilitate this they suggest that a special package be created for those who opt out of the judiciary. And the special package judges and magistrates have in mind is not just limited to terminal benefits.

"We state that as judicial officers, and citizens of this great nation, we are entitled to fair treatment and for this reason urge that together with the terminal benefits to be paid to the judicial officer who is found unsuitable after vetting or opts not to be vetted, he or she should be given a golden handshake for service to the nation commensurate to his or her years of service in the Judiciary," they said.

The association also delved into the current debate over who should become the next Chief Justice after Evan Gicheru bows out in two weeks.

Order of seniority

They argued Kenya has respected lawyers, magistrates and judges "of great repute, who command great respect and dignity in competence and capacity" and there was no need to search for a foreigner to head the Judiciary.

"We have no reason to tap outside resource and it is our view that the incoming Chief Justice should be a Kenyan citizen, duly qualified and endowed with relevant judicial experience to oversee a new Judiciary," they said.

This observation is a reaction to revelations Prime Minister Raila Odinga had pushed for Kenya to have a foreign judge appointed as CJ after President Kibaki sought to give Kenya a judge ranked number 21 in the High Court in order of seniority as the next CJ.

After the Commission for Implementation of the Constitution (CIC) was formed last month, it informed Parliament the Vetting Bill was not prepared or presented to the House in the manner recommended by the Constitution. The law requires that any of the 49 legislations necessary for implementing the Constitution should be prepared by the CIC in consultation with the AG.

The Justice Ministry single-handedly prepared several Bills and Justice minister Kilonzo went ahead to present them to the House, ostensibly to beat deadlines, but the CIC now says that the action was ill-informed.