Vetting of judges: Successes and failures

This past week, the Vetting Board for judges and magistrates rendered its last verdict on four judges of the High Court. This brought to an end the vetting of all judges of the High Court, the Court of Appeal and the Supreme Court.

The vetting has so far removed about 14 judges from the judiciary. The board will shortly start vetting magistrates, and is expected to wind up that exercise by December. With the end of the critical phase of the vetting, it is important to examine the successes, failures and lessons of the exercise.

Vetting was a constitutional process designed to reclaim the judiciary and free it from the yoke of a corrupt cabal involving judicial staff, lawyers and the public. The Constitution designed the exercise to bring about a complete rebirth of the judiciary.

The important question that needs an answer is whether the vetting has achieved that noble goal. On this aspect, the jury is split.

The single most important achievement of the exercise is that it allows the judiciary to move forward. The vetting has, for the first time, addressed and laid to rest the grievances Kenyans had against the judiciary.

Although the process wasn’t perfect, it can rightly be claimed that it put the judiciary on a high pedestal, in that all its judges have been vetted on a constitutional criterion and either fired or found fit. The vetting allows judges found fit to hold their heads high, feel rightly vindicated, and ready for the new challenges.

Causes of distress

The exercise was seen by many observers to have successfully addressed the fears and injustice Kenyans expressed in relation to the Court of Appeal. In removing four senior judges in the court, Kenyans saw the vetting board as having rightly struck down impunity, causes of distress in the court and historic injustices.

That set alive the vetting. So in so far as the Court of Appeal is concerned, the vetting board scored a very high grade.

The High Court process was different. The board adopted a more lenient and relaxed approach. It overlooked many issues of corruption as it relates to members of the court, and gave the benefit of doubt to the judges. It wasn’t as robust and interrogative as it was with the judges of appeal. It is here that many dangerous culprits were given a second chance in the bench.

Lawyers and the Kenyan public were the biggest culprits of the vetting. The process was, in large part, let down by these two groups. Many lawyers refused to come forward against judges against whom they had watertight accusations.

Their calculation was to continue their symbiotic relationship once the process comes to an end. Lawyers pose the greatest threat to judicial reform and will pose great obstacles and challenges in future.

The public, on whose behalf and benefit the vetting was conceived and carried out, also kept quiet. Here both the perpetrators and victims of corruption and injustice in the judiciary kept their peace instead of coming forward. That was a principal symptom of a Kenyan sickness that accepts corruption in the judiciary as a normal part of our lives.

Build on that

But the vetting on the whole is a great success. It must be treasured for its historic lessons. The judiciary must build on that and continue a constant internal process of vetting.

The vetting has not addressed corruption in the judiciary at all. However, it is an open secret that corruption is rampant in our courts. The next big challenge is to fight and eradicate it. The Chief Justice must urgently come forward with big ideas, policies and programmes on corruption in the judiciary. The role of lawyers in this enterprise must be addressed too.

Ahmednasir Abdullahi is the publisher, Nairobi Law Monthly [email protected]