Friday, September 10, 2010

Cabinet split but still passes Bill on vetting of Judges

Cabinet has endorsed the Vetting of Judges and Magistrates Bill 2010, but not without controversy over composition of the board that will screen members of the Bench and the procedure to be followed.

The endorsement paves way for the Bill to be taken to Parliament for debate and passage, before getting President Kibaki’s signature to become law.

Sources privy to the Cabinet meeting at State House on Thursday said that after heated arguments, ministers finally agreed that those seeking to sit in the board to vet judges and magistrates must formally apply through Public Service Commission, before their names are taken to Parliament for approval.

The sources that preferred not to be named because they are not authorised to speak to the media, disclosed that members of the Cabinet sub-committee led by Lands Minister James Orengo supported the Bill when Justice Minister Mutula Kilonzo presented it for discussion.

Vetting process

 

The vetting process, which is to begin immediately after the Bill is enacted by Parliament, shall be undertaken within one year, and may only be extended by Parliament by one year only.

Cabinet rejected the earlier proposals, which would have seen four nominees each picked from the Law Society of Kenya, Federation of Women lawyers (FIDA) Kenya, International Commission of Jurists and the Kenya Private Sector Alliance.

Other nominees would have come from four religious bodies, with two slots each. They are the Supreme Council of Kenya Muslims, Kenya Episcopal Conference, The National Council of Churches of Kenya and the Evangelical Fellowship of Kenya.

The Bill also received backing from Attorney General Amos Wako, who is also a member of the Cabinet sub-committee, as Mutula urged fellow ministers to back the Bill in order for the Judiciary to reclaim its confidence among the public.

Deadline

The sources said Mutula reminded his colleagues any delays to passing the Bill would mean missing the deadline.

According to the new Constitution, if the implementation schedule is flouted, any person can go to court and petition the Chief Justice to advise President Kibaki to dissolve Parliament.

The heated debate centred on the composition of members to the vetting board. Mutula is now expected to forward the Bill to the Government printers for publication today, in time for debate when Parliament reconvenes on September 28.

Once it becomes law, judges and magistrates will be vetted for suitability to serve in the reformed Judiciary. The role of Parliament is specified in Schedule 6 (23) of the new Constitution.

Yesterday, the Cabinet resolved that after Parliament approves the list of nominees, it would proceed to President Kibaki and Prime Minister Raila Odinga who will consult before the President ratifies their appointment.

Ministers argued that previous experience of nominating members through civil societies had failed, and resulted in wrangles in various commissions.

Examples cited include the Truth Justice and Reconciliation Commission, and lately, the Kenya National Human Rights and Equality Commission.

A source said: "Cabinet opposed the inclusion of names from civil society, NGOs, and professional bodies because their previous nominees failed or encountered challenges."

Another minister raised concern that even the Law Society of Kenya nominees may have several bones to pick with individual judges, thus resulting in biased vetting.

Fair process

Last week a member of Committee of Experts that drafted the new Constitution, Njoki Ndung’u, appeared to suggest that the purpose of the vetting is only to assess performance of judges and magistrates.

She thus asserted: "It is only members of the legal profession who can assess performance of judges through criteria, which would involve an individual judge’s record including judgments and rulings, demeanor, professionalism and delivery of legal opinions."

Some ministers said some organisations were too driven by special interest activism to give judges and magistrates a fair hearing. Previously a nominee was knocked off the list in Parliament on grounds that he was a wife batterer.

Judges and magistrates have said that they were ready to be vetted, but called for a fair, open and transparent process.

Some lawyers and judges have differed over the inclusion of non-lawyers in the vetting board, arguing that laymen cannot pass verdict on the fate of members of the ‘learned profession’.


The Kenya Law reform Commission chairman Dr Kathurima M’Inoti, however, challenged Ndung’u’s argument saying the provisions and considerations mentioned in the Constitution are not limited to performance of the judges and magistrates, and so the process should be all-inclusive.

The Judicial Service Commission Bill was, however, shelved and will be discussed at the next Cabinet sitting.

The meeting was cut short to pave the way for President Kibaki, PM Raila, Vice President Kalonzo Musyoka and the ministers to attend the funeral service of Mrs Caren Wabukala, wife of Anglican Archbishop Eliud Wabukala, at the All Saints Cathedral in Nairobi.

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