New law wants CJ, all judges be vetted afresh

Under the proposed constitution, the task of appointing the new Chief Justice is placed on the President in consultation with the Prime Minister. And before the person takes office there must be approval from Parliament. Photo/FILE

Courts are set for a major overhaul once the proposed constitution is passed by Kenyans. For the Chief Justice who is the head of the Judiciary, it will be fait accompli.

The proposed constitution requires Chief Justice Evan Gicheru (above), the man who has been at the helm of Judiciary for the last seven years, to resign from office within six months of the constitution taking effect.

Alternatively, the Chief Justice can opt to subject himself for examination under a law that Parliament is required to enact.

Retained as judge

And in the event that after the process of assessment, he is found by Parliament to be fit to hold judicial office, then he can be retained as Court of Appeal judge. Under the proposed constitution, the task of appointing the new Chief Justice is placed on the President in consultation with the Prime Minister. And before the person takes office there must be approval from Parliament.

Justice Gicheru will not be the only one who will face the heat with the coming of a new law; his judges too will be vetted afresh. However the judges will have the privilege of staying on a bit longer after the constitution takes effect.

While Mr Gicheru’s resignation is to take place within six months of the effective date of the constitution, the judges will hold on to their jobs for slightly longer. Parliament is supposed to come up with laws which will provide a procedure for vetting judges and magistrates within one year of effective date of the constitution.

Once they are vetted and cleared of corruption, then they can be allowed to take up judicial offices. There are 26 vacancies at the High Court and four at the Court of Appeal. With the new constitution the structure of the Judiciary will also change in that there will be introduced, a Supreme Court.

This court is supposed to be in place within one year, meaning the State can opt to appoint new judges under the new law to serve at the Supreme Court. If they choose this option, it means the new judges will not be vetted. The second option is to vet the current judges send home those found to be wanting and retain others.

Lawyer Paul Mwangi thinks the idea of vetting judges which is tantamount to re-applying for their jobs is good for the purposes of restoring people’s confidence in the institution. LSK is also on record supporting the idea of vetting judges.

A judge who spoke to the Nation but didn’t want to be named said in as much as some of them might be sent home, the proposed law would strengthen and give Judiciary the much needed independence. The judicial service commission too will have to be reconstituted within 60 days after the proposed constitution becomes law.

The new JSC will have its members drawn from the High Court, Court of Appeal and LSK, among others. There will be a judge to represent the High Court, a judge to represent Court of Appeal and one lawyer to be appointed by LSK. One more person who will be appointed by the head of Sate will sit as a member of JSC.

The major structural change which will be occasioned by the proposed constitution is creation of the Supreme Court. It will comprise the Chief Justice who will be its president, a Deputy Chief Justice and five other judges. Among many things, this new court will have the exclusive and original jurisdiction to hear and determine disputes relating to presidential elections.

And once the Supreme Court is established, it will assume the position of being the highest court in the land, followed by the Appeal Court. Currently, the highest court in the land is the Court of Appeal. For one to qualify to be appointed as Supreme Court judge, he or she must have at least 15 years experience as High Court judge or same experience as legal practitioner.

At least ten years experience as a high court judge is required for one to be eligible for the work of Court of Appeal judge. Attorney General Amos Wako is also one of the victims should the proposed law be voted in. However he will be allowed to perform his duties for one year from the date that the new Constitution takes effect