LSK’s uphill task in push for constitutional amendment

By Lillian Aluanga-Delvaux

The Law Society of Kenya’s initiative to collect one million signatures to push for a constitutional amendment will be revolutionary in the country’s history of Constitution making, if it succeeds.

LSK began collecting signatures countrywide last week to change Section 23(2) of the Sixth Schedule of the Constitution to compel all judges and magistrates serving before the Constitution was promulgated in 2010 to resign and reapply for their jobs.

The campaign was sparked off by a High Court decision to block the degazettement of judges that had been found unfit to serve by the Judges and Magistrates Vetting Board, until their appeals on the matter are determined by the courts.

These are High Court judge Jeanne Gacheche and Court of Appeal judges Joseph Nyamu, Samuel Bosire, Riaga Omollo and Emmanuel O’Kubasu.

According to Section 23 (2) of the Sixth Schedule the removal of a judge from office through the vetting mechanism should not be subject to question or review by any court.

The High Court, however, argued it had jurisdiction to supervise the vetting board. The board now wants the Supreme Court to give an interpretation on the matter.

“We have so far collected 380,000 signatures. When you see five judges agreeing that courts have jurisdiction after a decision by the vetting board has been made you have to be worried,” says LSK Chair Eric Mutua.

 “We want to prepare in event the Court of Appeal takes the same position. All those judges in the Court of Appeal have gone through vetting and you cannot be sure how they may react,” he added.

Jumping the gun

According to Mutua, LSK wants to have the signatures ready to enable members take a position at its Annual General Meeting slated for December 8, 2012.

But while there are those that agree the idea is noble, there is a feeling that LSK may be jumping the gun.

“It may be a good move, politically, but one wonders whether it is timely,” says Haki Focus Executive  Director Haroun Ndubi.  Ndubi argues that while understanding LSK’s frustrations over persistent attempts to stall the work of the vetting board, what it is seeking to resolve is still before the courts.

“The move to collect signatures is welcome, especially to verify the fact that the vetting board is insulated against interference by the Judiciary as provided by the Constitution, but we haven’t exhausted all avenues of resolving the issue before pushing for an amendment. This would be more applicable where say the Supreme Court has already made its ruling on the matter and there is therefore no alternative,” he says.

Ndubi also points to the legal dilemma for the High Court and LSK in the argument of what should be upheld.

While it is the right of every individual to access justice, the Sixth Schedule in a way ousts this right in context of the vetting exercise, by providing that decisions made by the board not be challenged by any court.

“The same Constitution has created the courts and given them supervisory powers over tribunals and at the same time also provides for establishment of the vetting board. There is a question of jurisdiction and the right of individual judges, but it is important to note there is a thin line in distinguishing between fundamental rights and freedoms of these judges,” says Ndubi.

Tedious process

In his argument, Ndubi proposes that while fundamental rights are safeguarded by the courts and cannot be taken away, freedoms are a right or rights one can enjoy but can be taken away by law. In this way he argues that one can therefore not claim to have the fundamental right to be a judge.

Nairobi lawyer Mugo Kamau says besides the challenges in meeting the threshold required in amending the Constitution by collecting signatures, the process is tedious and may adversely affect judicial officers that are ‘clean’.

“Some judicial officers had already been vetted and cleared but now because of a few people that have prompted LSK to take this action, many will be affected if such an amendment is passed,” he says.

Chapter 16 of the Constitution provides for amendments to the Constitution through a referendum, parliamentary initiative, and by popular initiative. Amendments through popular initiative require signatures of at least one million registered voters.

The Constitution provides that a popular initiative for amendment may be in the form of a general suggestion or formulated draft Bill (Article 257).

It further stipulates that promoters of such an initiative are required to deliver a draft Bill and supporting signatures to the Independent Electoral and Boundaries Commission (IEBC).

Once the IEBC is satisfied that the initiative meets the requirements of this Article, it submits the draft Bill to each County Assembly for consideration within three months after the date it was submitted by the commission.

If the County Assembly approves the draft, its Speaker is required to deliver a copy, jointly to the Speakers of the two Houses of Parliament, with a certificate showing the County Assembly’s approval. If the Bill has been approved by majority of the county assemblies it is then introduced in Parliament and once passed, presented to the President for assent.

The process therefore raises various technical issues that may be cited in the ongoing initiative given that the county assemblies are yet to be created and there is still no official voters register. There is also the question of time given that Parliament has less than five months before the election in March next year.

“Under the transitional clauses, Parliament may seat as the Senate, but there are still no guidelines on how this could be done. Besides there is also the possibility of such a Bill failing to pass in Parliament because of vested interests,” says Ndubi.