Make vetting team for judges all-inclusive

The proposed vetting of judges has generated plenty of heat over the composition of the team that will carry out the exercise.

Some would prefer that the vetting team consist entirely of advocates of the High Court, while civil society groups are rooting for inclusion of lay people.

Parliament has one year in which to set up mechanisims and procedures for the vetting of judges and magistrates who were in office on August 27 when the new Constitution was promulgated to establish their suitability to hold office.

The process is in danger of getting hijacked by vested interests on all sides, and that is a grave mistake.

It cannot be ruled out that on all sides are those who see this as a chance to get even with members of the bench for perceived injustices or omissions.

Our leaders should have learnt a lesson from the so-called radical surgery of the Judiciary carried out in the early years of the Narc administration, which, though well meaning, was poorly managed.

Kenyans did not overwhelmingly vote for the new laws so that vested interests could use them as some form of revenge.

The whole purpose of vetting judges and magistrates is to ensure that only those of impeccable character and whose records speak for themselves remain in office to be entrusted with the delicate task of helping the Legislature and Executive midwife the implementation of the new laws.

The proposed vetting team is powerful since its decisions are not subject to question in, or review by, any court. This is why it is important that no vested interests control the agenda of the vetting process for the judges and magistrates.

Kenyans will be expecting those chosen for this task to be people of unimpeachable moral standing and not just have the experience and understanding of matters of law.

Some lawyers rightly argue that if the vetting is limited to the competency of judges, then the membership should be made up entirely of advocates of the High Court. However, if the mandate of the vetting committee goes beyond the professional ability of members of the bench, and touches on their suitability for office based on, among other considerations, their moral uprightness, then it should be expanded to make it more comprehensive.

Not infallible

Parliament, therefore, faces a difficult task, more so because the Government is racing to get most of the legislation buttressing the new Constitution in place before the end of this year.

Schedule 6 (23) of the Constitution requires Parliament to enact legislation establishing mechanisms and procedures for vetting the suitability of all judges and magistrates to continue serving under the new Constitution.

There are compelling reasons to include lay people in the vetting team since the legal fraternity cannot claim to be infallible. The Constitution creates a new Judicial Service Commission (JSC) under Article 171, and includes in its composition, a man and woman who are not lawyers, plus a third who also does not have to be a lawyer, nominated by the Public Service Commission.

Given that the commission will play a key role in the appointment of judicial officers, it makes little sense to argue that lay people can perform this task, and yet not contribute in the vetting of judges and magistrates.

It is therefore heartening to note that even the Law Society of Kenya supports an all-inclusive vetting team that would eliminate any claims of bias by those who will undergo the exercise.

As LSK Council Chairman Kenneth Akide was quoted: "Even though lawyers are the key components of the judicial system, litigants as consumers have a stake. If it is on integrity, the consumer is always the one who bribes the judicial officers and they too ought to be accommodated if we want to get good results."