Parliament erred; JSC should not vet magistrates
To describe our Parliament as a conceited rogue institution that solely caters for the selfish interests of its members is an understatement.
This week, Parliament passed laws that accentuate and emphasise the danger it poses to the existence of our constitutional order.
Three amendments relating to the academic qualifications of candidates who can run for certain public offices, the phenomenon of party-hoppers and the vetting of judges and magistrates outraged Kenyans in different ways and degree.
The first two have adequately been addressed by a number of interest groups and the majority of Kenyans appreciate the debate that informs the same.
Reactionary forces
What no one is talking about is how Parliament, at the behest of saboteurs and dark reactionary forces, has crippled the vetting of judges and magistrates, a process Kenyans voted for and incorporated in the Constitution.
A majority of Kenyans agreed that the vetting of judges and magistrates be undertaken in order to address, once and for all, the historical limitations that bedevilled the judiciary.
A lot of effort, time and resources have gone into implementing the vetting. The vetting board, once constituted, started its operations with gusto and has so far gone remarkably well.
It must be appreciated that the vetting process is almost unique in the world and great effort was made in ensuring that it is fair and passes the test of due process and constitutional thresholds of fair hearing.
The vetting board has finalised with the judges of the Supreme Court and the Court of Appeal. It has started vetting judges of the High Court and is scheduled to finalise with members of the court by October/November this year.
Some people argue that the vetting process is slow and certain time limits ought to be imposed. That would be a grave mistake.
This process addresses serious national and personal issues. Men and women who were career judges are being vetted in order to determine whether their career is terminated or not.
It is a very delicate process and great care and time must be devoted to each and every case. It simply can’t be rushed.
Parliament has now passed an amendment to the law that transfers the vetting of more than 350 magistrates from the vetting board to the Judicial Service Commission (JSC).
As a representative of the Law Society of Kenya in the JSC, I share their fears and opposition to this amendment. This is for a number of pertinent reasons.
First, since the vetting board has been doing a remarkably great job, why curtail its mandate?
The answer is very simple. The government is not happy with the thoroughness of the vetting board and wants a process that is less rigid and accountable.
Second, the JSC doesn’t have the time and resources to vet 350 magistrates. It is the only part-time commission in Kenya. Its members are engaged in other activities.
Sensitive offices
Members such as the Chief Justice and the Attorney-General are in charge of sensitive offices and will have little or no time to vet 350 magistrates for a number of years.
Third, it will probably take four to five years for a part-time PSC to vet 350 magistrates.
Fourth, the JSC is basically an institution dominated by members of the judiciary. Every level of the judiciary has a representative. There are only five non-members of the judiciary.
Can an institution heavily dominated by members of the judiciary be seen by ordinary Kenyans to do a decent job in vetting magistrates?
Fifth, a foreign component is a must in the vetting process. And the JSC can’t satisfy that requirement.
The writer is the publisher of Nairobi Law Monthly [email protected]
