Even those being vetted have rights, so can Parliament create vetting legislation?

Yes, this afternoon our attention - as a people and a country - will be focused on Parliament with respect to the tabling of a report on the vetting of three Judiciary nominees - Dr Willy Mutunga, Nancy Barasa and Keriako Tobiko for the positions of Chief Justice, Deputy Chief Justice and Director of Public Prosecutions .

The Speaker of the National Assembly, Mr Kenneth Marende, delegated the critical task of vetting nominees of Constitutional Offices to the Abdikadir Mohamed-led Constitution Implementation Oversight Committee.

Why? It was made necessary after the Committee on Justice and Legal Affairs, which is vested with such a responsibility, went into limbo due to sustained power struggles centred on its leadership. It is, however, now apparent that wider political and succession interests are at play — aimed at capturing advantages in the appointments pitting the Party of National Unity (PNU) and the Orange Democratic Party (ODM).

At the outset, we reiterate that notwithstanding the motivating political considerations of main competing political parties, an overriding national interest must inform all appointments, not just to Constitutional Offices, but any public office for that matter.

True, we must indeed ensure that all those who offer themselves for consideration to any public office are appropriately vetted for suitability in terms of competence and integrity.

However, whilst such vetting certainly remains an indispensable requirement, such a process must be carried out in a manner that respects the constitutional rights of the nominees or candidates. What, then, are the lessons thus far?

First, as a country we must urgently establish vetting regulations to guide the process and safeguard against potential abuse actuated by malice or capture by those with vested agenda.

In retrospect, we are more learned, if we choose to draw useful lessons from the past conduct of interviews and vetting approach and practice. The vetting process need not be dramatic and heavy-handed in any way, but open, fair and insightful without demonstrable overbearing by those charged with the vetting.

Thus, in the new dispensation of transparency and vetting, it is critical to make it fair to attract the best candidates and encourage submission of information in order to operate within the spirit of the constitutional rights of any such persons.

The ground regulations must clearly be structured and aimed at testing for multiple and/or varied considerations including: Professional competence, sobriety, capacity to hold positions of public trust and responsibility, audit of past experience, track record for consistency or inconsistency and test of integrity. The latter case of integrity must be confronted with real facts and/or allegations, and these must be put clearly as allegations unless corroborated as facts.

These, among all others, constitute the critical need towards satisfying ‘fit and proper’ criteria test requirements. It is essential to develop these guidelines to guarantee and preserve the nominees’ and applicants’ rights to fairness without creating a position that amounts to subjecting them to public ridicule loaded upon in a reckless manner.

Second, the applicants must be ready to answer tough questions put to them firmly, and must also subject themselves to public scrutiny given that the nature of their positions is that of public trust.

But that being the case does not mean that the candidates should in any way be harassed, ridiculed or subjected to uncorroborated allegations being admitted as evidence, or put to them in a manner that suggests it to be true. Neither should an appearance of any person before a vetting panel be seen as an opportunity to make outrageous allegations aimed at simply derailing such nomination for a vested reason.

Further, it is essential for Parliament to create a framework to allow for an invited and structured interaction between the public and the vetting panel with respect to information that is considered useful in establishing suitability of any nominees to public offices.

Indeed, any such information obtained in the course of such interaction should be subjected to scrutiny tests for accuracy and corroboration.

Third, a vetting law should also allow for the summoning and compelling of any person considered as having any information to provide or disclose in a factual manner.

In the end, there must be serious penalties and consequences for false information or misrepresentation of facts, and this is in order to engender public trust in the process.

With respect to theatrics during the vetting of Mutunga, Barasa and Tobiko, nothing can now cure what has already transpired during the process, but this afternoon, it is Parliament’s turn to demonstrate sobriety in debating the names without what is quickly emerging as politicisation and polarisation.

No matter our divergence of opinion, one thing must be absolutely clear: The integrity of the selection process and those vetting is as critical as those of the nominees in engendering public trust and confidence as well as our national diversity.

Finally, it is essential to strengthen the Criminal Investigation Department with additional resources, forensic facilities and expertise as a critical pillar in prosecutions.

The cast is now abundantly clear: Parliament must do what is right for Kenya and its people — not action based on short-term consideration. Indeed, such action must be resolute, this being a matter of compelling public interest.

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