The Vetting of Judges and Magistrates Bill now before Parliament sets clear thresholds for vetting judges and magistrates as required by the new Constitution.
It seeks to prevent the process from becoming a witchhunt, as happened with previous efforts to clean out the Judiciary; Judges; and restore public faith and trust in the office. The suitability thresholds for judges and magistrates include, but are not limited to, their "intellectual capacity, legal judgment, diligence, substantive and procedural knowledge of the law, organisational and administrative skills, and the ability to work well with a variety of people.
They are also supposed to have sufficient oral and written communication skills. But all these are useless without the most important qualification of all: integrity.
The Bill defines integrity as "demonstrable consistent history of honesty and high moral character in professional and personal life; respect for professional duties arising under the codes of professional and judicial conduct; and ability to understand the need to maintain propriety and the appearance of propriety."
Unfortunately, many of our political leaders appear to have a totally different interpretation of what makes one suitable to be a magistrate or judge of the High Court. For them, the most important qualifications for one to hold any of these offices are allegiance to their party leader, being of the right ethnic orientation and a willingness to accept bribes in return for favourable rulings.
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There is no point in skirting around the truth, which is that a corrupt Judiciary serves their interests better than a clean one.
If indeed our political leaders were sincerely keen on giving Kenyans a clean Judiciary, we would not have been treated to the circus over the recent nominations by the Executive to four key constitutional offices. Just the mere hint that the process was not above board, and the furore and indignation it has aroused among Kenyans would have been enough for them to demand that the list go back to the two principals.
The Vetting of Judges and Magistrates Bill seeks to address inadequacies in law as regards standards for members of the bench who are supposed to dispense justice equally and without favour.
Speaker’s wise ruling
The US system remains the best example of how to choose judges and magistrates.
The founding Fathers were appalled at the idea of a president who picks judges at will simply because of the significant power they wield from the bench, and ensured that every judge nominated by the president must undergo vetting by the Senate to determine their suitability for the bench
Which is why the ruling by House Speaker Kenneth Marende yesterday that effectively returned the list of nominees to President Kibaki and Prime Minister Raila Odinga is welcome. The Speaker took time to quote extensively from the law and precedents set by the House to show why it is important that not just the letter but the spirit of the law be followed in appointments to constitutional offices such as that of the Chief Justice, among others.
It is now important that both Party of National Unity and Orange Democratic Movement MPs step back from brinkmanship and focus on passing the pending Bills in Parliament that should anchor the new Constitution.
The matter of the nominees is now back in the hands of the two principals who are now expected to make the process more inclusive by involving the Judicial Service Commission and the Public Service Commission.
It was their decision to lock out the two institutions that threw a spanner into the entire nominations process.
This is a time for cool heads and compromise, not reckless utterances. And for this reason, the Kibaki and Raila should reign in their lieutenants and consult in the true meaning of the National Accord.