As the carnival mood over the proclamation of the new Constitution wears off and reality dawns, it is now down to business and confronting the inevitable in the implementation of new laws.
And in the spotlight was the constitutional requirement for judges and magistrates to be vetted for suitability before continuing to serve in the Judiciary.
Yesterday, legal experts differed on the exact procedure to be followed, with some arguing that lay people should not sit in the vetting team.
Judges take oath of office on Friday after the new law was promulgated. [PHOTO:
GOVEDI ASUTSA/STANDARD]
A key item in the national values and principles of governance under the Constitution is the participation of the people as set out in Article 10, which binds all State organs, State officers, public officers and all persons whenever they apply or interpret the new set of laws.
The Constitution creates the new Judicial Service Commission (JSC) at Article 171, and includes in its composition, a man and woman who are not lawyers. Further, another member — who is not required to be a lawyer by the Constitution — will be nominated by the Public Service Commission. This means that the mandate of the JSC includes a key role in picking judicial officers, hence the divergent opinion.
Suitability
However, Schedule 6 (23) of the Constitution requires Parliament to enact legislation establishing mechanisms and procedures for vetting the suitability of all judges and magistrates to continue serving under the new Constitution.
Yesterday, lawyers differed over the procedures to be followed after a member of the Committee of Experts Ms Njoki Ndung’u in her column in The Standard On Saturday sparked off debate when she called for the exclusion of non-lawyers in the vetting team.
But the chairman of the Kenya Law Reform Commission, Mr Kathurima M’Inoti, said lay-people should be included in the vetting team as this was aimed assessing suitability and not performance.
Said Kathurima said the Constitution provided for vetting of judges for suitability, and there were compelling reasons to include non-lawyers. "We have moved from the dated view that in legal matters, no other opinion matters save that of lawyers. "The JSC with non-lawyers is responsible for, among other things, recommending to the President persons to be appointed as judges. If matters of the law are the concern of lawyers only, we should have expected the new Constitution to create a JSC composed exclusively of lawyers," said Kathurima.
Also supporting the inclusion of lay-people was the umbrella body for advocates of the High Court, the Law Society of Kenya (LSK).
Row: Legal experts differ on procedure for vetting of judges Continued from P1 Council Chairman Kenneth Akide said Kenyans from other professions have a say in the dispensation of justice and their participation remains crucial.
"Even though lawyers are the key components of the judicial system, litigants as consumers have a stake. If it is on integrity, the consumer is always the one who bribes the judicial officers and they too ought to be accommodated if we want to get good results," said Akide.
However, Senior Counsel Paul Muite and East African Law Society Secretary James Mwamu differed with Akide’s position, and said only lawyers should be in the vetting panel. The LSK chairman rooted for the participation of the LSK in vetting, saying the body had details on all judges and magistrates.
Chief Justice Evan Gicheru early this month led all judges in agreeing on sets of policies, measures and technical recommendations to guide the Judiciary, to finalise medium and long-term reform programmes in the areas of integrity, professionalism and access to justice.
Handsome Package
Akide said majority of lawyers were for fresh vetting of judges because they, too, had been let down by the Bench and Bar.
He said most judges and magistrates were scared of vetting, and opined that many would opt out rather than face the panel.
"I have talked to a number of judges and magistrates and their fear is derived from the 2003 purge that claimed innocent ones," said Akide. He revealed that under the vetting Bill, those to leave without going through vetting would be given a handsome package, while those who will be found guilty and unfit to serve will only qualify for terminal benefits.
Competent
"Given that they are colleagues in the profession, they understand the law and will be competent enough to determine who is fit to serve Kenyans as a judge or as a magistrate," said Muite.
Mwamu suggested that the vetting panel should comprise of two Senior Counsel, two retired judges of repute and a retired senior State Counsel or somebody from the State Law Office.
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