Judges have accused their employer of altering their recommendations to the Building Bridges Initiative (BBI) task force.
Several who spoke on condition of anonymity said their proposals to the Judicial Service Commission (JSC) were omitted in the final document presented to the unity team led by Garissa Senator Yusuf Haji.
According to the judges, they had suggested that serving judges and magistrates should not sit in the JSC, and lawyers who are members of the commission should cease practising to guard against conflict of interest.
Another proposal that was reportedly dropped required the recruitment and removal of Supreme Court judges to be done by Parliament due to fears the JSC lacked the impartiality to oversee hiring of top judges.
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The proposals were given to a JSC team headed by commissioner Mercy Ndeche.
“JSC ought to have presented our proposals as they were or, on the other hand, the BBI team should have come to get our proposals as the Judiciary. JSC is an independent commission and it should have presented its issues while the Judiciary, which is composed of judges, should have presented ours,” a senior judge told The Standard.
But Ndeche described the allegations as laughable, saying that all proposals were incorporated in a 74-page document presented to the task force. She insisted that none of the issues our sources said were omitted were presented to her team.
"First and foremost, the process was done by a committee composed by the JSC and Judiciary. One judge represented the Supreme Court, four judges represented the Court of Appeal, one judge was from the High Court and each specialty courts, the Kenya Judges and Magistrates Association and judicial staff,” she said.
Ndeche said only the Supreme Court judges had presented a written memorandum.
But another judge told this writer that a sieving process left out critical issues, especially those pitting them against their employer. Some of the issues left out, the source said, included the composition of JSC, employment and disciplining of judges, handling of complaints and policy issues.
The proposal to involve legislators in the hiring and firing of Supreme Court judges elicited divergent views.
"It was felt that the Supreme Court, being the superior court, should have a similar removal process with countries like the US, UK and India, among others. In addition, judges said it would create impartiality as MPs would have to go through all evidence without vested interests, which have been in JSC before,” the judge said.
Ndeche, however, said the issue was ever raised, adding that it would be unlawful for Parliament to be involved in sacking of judges. "I have not heard of such a proposal. We are dealing with two different arms of government. It would be totally against the rule of separation of powers."
Another proposal that was reportedly left out was strengthening the office of the CJ to allow the holder to deal with disciplinary issues that are not a misconduct.
Yet another suggestion was to allow the Judiciary to make and implement its policies independently, with judges involved in, among other things, the budget-making process.
But Ndeche said the proposal was not new "because the JSC and Judiciary have always been independent."
The issues JSC proposed to the BBI team included funding of the Judiciary, retirement of judges, the relationship with other arms of government, special courts, tribunals, oath of office of the deputy CJ and terms of office.
Other suggestions included increasing the number of Supreme Court judges to 11 but retaining the quorum at five, and extending the timeline of hearing election petitions from 14 to 30 days.
To qualify for a seat in the Supreme Court and Court of Appeal, one should have 20 and 15 years experience respectively.