Vetting of judicial posts a milestone but the process must be seen to be fair

This week’s beginning of public interviews for top judicial posts on live television and the soon-to-commence process of vetting of all judges and magistrates is a major milestone in the struggle for democracy and accountability of public officers in Kenya.

I am not aware of any other democracy on earth that has a system as robust of Kenya’s new way of hiring and firing judicial officers — thanks to the new Constitution and to all those who have struggled and laboured towards the widening of democratic space.

The revamped Judicial Service Commission (JSC) and the Judges and Magistrates Vetting Board, when constituted, are expected to give our country a Judiciary we can be proud of.

That way, we will stop relying on foreign courts to settle disputes among ourselves, thereby restoring the lost glory of Kenya.

While the envisaged public interrogation and vetting of candidates for high judicial office is a welcome break from the past, the process should be protected by law from the pitfalls that befell the 2003 attempt to clean up the judiciary.

The much-hyped “radical surgery”, which led to the suspension of 22 judges and 82 magistrates, did not succeed in ridding the Judiciary of unsuitable officials mainly because there was no clear criteria on how those deemed to be crooked were identified.

Subsequently, almost all the judges who opted to challenge their suspension were found innocent by tribunals and reinstated

In particular, the processes should follow the rules of natural justice, otherwise they will be viewed as a lynch mob.

If the rules of natural justice are not strictly guaranteed, there is the risk of good and experienced judges and magistrates walking away to avoid having their reputations tarnished.

For example, there will be need to give adequate notice to the candidates for the various posts or the judges or magistrates being vetted of the venue and time for the interview or vetting as the case may be; of any adverse information about them before the oral hearing, so that they can prepare responses.

While in the advertisements for the various posts there has been a good attempt to define the criteria which the interviewers will be using to determine the suitability of the candidates, the details are not adequate.

In the spirit of fair, public vetting and hiring of judicial officials there is need for the JSC and the vetting board to develop detailed criteria and guidelines for suitability interviews, with explanatory notes on each head.

The list of proposed heads of criteria to be used can be long, but it must include such universal attributes as selflessness, history of promoting national interests and national values, integrity, objectivity, accountability, openness, honesty and leadership record.

There is need for a law to oblige the JSC or the vetting board to act in good faith.

The interviewing or vetting bodies should also be empowered to subpoena witnesses who may make complaints yet refuse to testify, or persons who may have important documents or information about the officer being vetted and fail to produce such documents or information.

Finally, vetting of judges and magistrates should be linked to the work the JSC is doing; of hiring the CJ, Deputy CJ, judges of the Supreme Court and new judges and magistrates to fill the posts of serving judicial officers who may opt not to go through the vetting process.

In fact, the Vetting of Judges and Magistrates Act should be amended to make the process and the board a continuous and permanent process and not an ad hoc. Possibly, the board should be made a sub-committee or some other subordinate body of the JSC.

The problem with the ad hoc vetting approach is that it establishes a time limited process that is not conducive to building the institutional capacity of the judiciary to police itself.

It would make more sense for a reconstituted JSC to vet judicial officers. Such an approach is in keeping with the practice in other Commonwealth democracies.

Professor Kithure Kindiki is a lawyer and former Associate Dean of the School of Law, University of Nairobi.