CRITICAL ANALYSIS OF JUDICIAL VETTING

PROCESS IN KENYA
By Wanjala Sikuta.
1.0 Introduction
At the height of the Post Election violence in Kenya in early 2008, the Orange Democratic
Movement which was protesting the result of the presidential election that declared incumbent
president Mwai Kibaki re-elected, refused to take its dispute for judicial determination
because it didnt believe that the Judiciary was an impartial and independent arbiter to
oversee the election petition.
1
Parliament failed to constitute a local Tribunal to look into the
cases of post-election violence because MPs and the public lacked faith in the local judiciary.
The Judiciary was viewed as a state organ embroiled in impunity, corruption, bias and under
the executive control and would therefore not give an objective or impartial determination.
In the words of Chief Justice Dr. Willy Mutunga, it is an institution so frail in its structures, so
thin in resources, so low on its confidence, so deficient in integrity, so weak in public support
that to have expected it to deliver justice was to be wildly optimistic.
2

An independent, impartial, honest and competent Judiciary is integral in upholding the rule of
law as well as winning public confidence and the dispensation of justice.
Judges are accountable to the Constitution and to the law which they must apply honestly,
independently and with integrity. The principles of judicial accountability and independence

1
Judicial Integrity and vetting in Kenya- UNDP Publication, Vol. No. 6 September, 2010
See also Common Wealth (Latimer House) Principles on the Three Branches of Government.
2
Chief Justice Dr. Willy Mutunga, as quoted by the East African Center for Law & Justice, www.eaclj.org, 9
th
June 2012
underpin public confidence in the judicial system and the importance of the judiciary as one of
the three pillars upon which a responsible government relies.
3

Chief Justice Dr. Willy Mutunga in his keynote speech for the Africa and International Law
Conference at Albany Law School stated, The judiciary was one of the most criticized of the
institutions of the old order. The legacy of the one party state was still discernible in judicial
pandering to executive wishes. And I do not mean merely the sort of deference to the
legislature that lawyers may legitimately argue about, but judges who would adjourn matters
before them to take instructions from State House. The judiciary was one aspect of the
machinery of impunity. Simple financial corruption was also rife. And, if you are auctioning
your judgment to the highest bidder, it is probably counter-productive to exhibit much legal
skill! For many years law reports were not up to date, and legal literature was all but non-
existent.
The judiciary operated so unprofessionally, so incompetently and lacked the credence to spur
the development of jurisprudence and the administration of justice.

Bangalore Principles of Judicial Conduct identified six core values of the judiciary-
Independence, Impartiality, Integrity, Propriety, Equality, Competence and Diligence. These
are intended to establish standards of ethical conduct for judges, they are also intended to
assist members of the executive and the legislature, and lawyers and the public in general, to
better understand the judicial role, and to offer the community a standard by which to
measure and evaluate the performance of the judicial sector.
4

These values were completely disregarded in the old order and so the current judicial
transformation process and which vetting of judges and magistrates is viewed as part of the
measures to transform the Judiciary ought to be embraced by everyone including the Judges
and Magistrates themselves.
It ought not to be viewed as a form of punishment. Even in the Bible, Matthew 6:24 says, No
one can serve two masters, for either he will hate the one and love the other, or he will be

3
Common Wealth(Latimer ) House Principles on the Three Branches of Government
4
Measures for the effective implementation of the Bangalore Principles of Judicial Conduct, as Adopted by the Judicial
Integrity group at its meeting in Lusaka Zambia, 21st and 22nd January, 2010
devoted to the one and despise the other.. Judges ought to interpret the law and apply it in
accordance with the constitutional provisions, serve the people who have entrusted them with
this mandate and enhance the rule of law and administration of justice not to respond to the
control of anyone.
For those who served the executive of the old order at the expense of the people of Kenya in
the application of the law and promotion justice, it is sad for them but a time comes when one
has to be held responsible for his/her actions. For those who stood to the law, they have
nothing to worry about.

1.2 The Vetting Process
The success of the judicial vetting mechanism in Kenya will contribute to an explosion of the
use as more African countries work towards strengthening their governance systems.
Germany, Bosnia, Czech Republic, Liberia and Hungary are some of the countries that have
undertaken vetting as a mechanism for institutional reforms though mostly as a post-conflict
measure. Kenya is not a post-conflict country.
Vetting of Judges and Magistrates in Kenya brings to the fore the following sources of Law;
i. The Constitution of Kenya 2010;
ii. Vetting of Judges and Magistrates Act (No. 2 of 2011);
iii. Supreme Court Act (No. 7 of 2011);
iv. African (Banjul) Charter On Human And Peoples' Rights;
v. Landmark Judicial Precedents (Marbury v. Madison, Singarasa case-a Sri
Lankan case etc); and
vi. The Bangalore Principles of Judicial Conduct
The CKRC and Bomas drafts are other materials which made provisions for the overhaul of
the judiciary.
Justice as Prevention: Vetting public employees in Transitional Societies- A publication of
International Centre for Transitional Justice is yet another resourceful material that lays down
procedures and demonstrates previous vetting mechanisms especially in post-conflict states.
The Constitution of Kenya, Sixth Schedule, Section 23(1) provides, Within one year after the
effective date, Parliament shall enact legislation, which shall operate despite Article 160, 167
and 168, establishing mechanisms and procedures for vetting, within a timeframe to be
determined in the legislation, the suitability of all judges and magistrates who were in office on
the effective date to continue to serve in accordance with the values and principles set out in
Articles 10 and 159.

Section 23 (2) states, A removal, or a process leading to the removal, of a judge, from office
by virtue of the operation of legislation contemplated under subsection (1) shall not be subject
to question in, or review by, any court.
5

The Supreme Court Act section 14 provides for the Supreme Courts Special Jurisdiction.
Section 14(1) states, To ensure that the ends of justice are met, the Supreme Court shall
within twelve months of the commencement of this Act, either on its own motion or on the
application of any person, review the judgments and decisions of any Judge-
(a) Removed from office on account of a recommendation by a tribunal appointed by the
president, whether before or after the commencement of this Act;
(b) Removed from office pursuant to the vetting of the Judges and Magistrates Act, 2011;
or
(c) Who resigns or opts to retire whether before or after the commencement of this Act,
in consequence of a complaint of misconduct or misbehavior.
Section 2 says, To qualify for review under subsection (1) the judgment or decision shall
have been the basis of the removal, resignation or retirement of, or complaint against, the
Judge.

5
Section 23 of the Sixth Schedule to the Constitution of Kenya 2010
The Vetting of Judges and Magistrates Act, 2011 on the other hand provides under its guiding
principles section 5, In the exercise of its powers or the performance of its functions under
this Act, the Board shall at all times, be guided by the principles and standards of judicial
independence, natural justice and international best practice.
The decision of the Vetting Board is final and where a Judge or Magistrate is dissatisfied with
a decision of the panel, s/he may appeal for review to another panel comprised of the
Chairperson, the Deputy Chairperson and three other members who did not sit in the panel
whose decision is subject of review.
The above provisions demonstrates a clear conflict of laws and the manifestation of the
doctrines of Constitutional Supremacy, Judicial review and the Separation of Powers and a
deviation from the principles and standards of judicial independence, natural justice and
international best practices as postulated by the Vetting of Judges and Magistrates Act, 2011,
section 5.
6

The effect of Constitutional Supremacy is that it renders section 14(1)(b) null and void
because it is inconsistent with the provisions of Section 23 of the Sixth Schedule to the
Constitution of Kenya 2010.
Whereas Article (2)(4) of the Constitution states, Any law, including customary law that is
inconsistent with this Constitution is void to the extent of the inconsistency, and any act or
omission in contravention of this Constitution is invalid. Section 23 of the Sixth Schedule to
the Constitution restricts the appeal to the vetting Board only and no appeal may lie from the
Board to any Court of law.
Section 14(1)(b) of the Supreme Court Act, 2011, states, To ensure that the ends of Justice
are met, the Supreme Court shall, within twelve months of the commencement of this Act,
either on its own motion or on the application of any person, review the judgments and
decisions of any Judge removed from office pursuant to the Vetting of Judges and
Magistrates Act, 2011. This provision is therefore invalidated by the Constitution
In appreciating the Supremacy of the Constitution, B.R. ATRE in his book Legislative
Drafting(Principles and Techniques) he states, The Constitution of a country is the very

6
Vetting of Judges and Magistrates Act, 2011. See also the Supreme Court Act, 2011, Section 14
framework of the body policy of that country, its life and soul-it is the fountainhead of all its
authority, the mainspring of all its strength and power. The Executive, Legislature and
Judiciary are all its creation, and derive their substance from it. It is unlike other statutes which
can be at anytime altered, modified or repealed.
Constitutional Supremacy spans from the Landmark case of the United States in Marbury v.
Madison 5 US (Cranch 1) 137 (1803).
This was a case of judicial review and demonstration of the supremacy of the constitution.
The Judiciary Act 1789 was in conflict with Article III of the US Constitution and the
Constitution was held to prevail. What then this means is that the Judges and Magistrates will
have to live by the final verdict of the Vetting Board.
Article 50(2)(c) provides that every accused person has the right to a fair trial, which includes
the right to have adequate time and facilities to prepare a defence.
Article 5 of the African (Banjul) Charter on Human and Peoples Rights states, Every
individual shall have the right to the respect of the dignity inherent in a human
being and to the recognition of his legal status. All forms of exploitation and degradation of
man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment
and treatment shall be prohibited.
Article 7 provides, Every individual shall have the right to have his cause heard.
This comprises:
(a) the right to an appeal to competent national organs against acts of violating his
fundamental rights as recognized and guaranteed by conventions, laws, regulations and
customs in force;
The Kenyan Constitution also recognizes the above provisions as well.
The question then is, did the Vetting Board observe these provisions?
Principles and guidelines on the right to a fair trial and legal assistance in Africa provides the
following elements as essential to a fair hearing;
(a) Adequate opportunity to prepare a case, present arguments and evidence and to
challenge or respond to opposing arguments or evidence;
(b) An entitlement to an appeal to a higher judicial body
(c) Judicial officers shall not be liable in civil or criminal proceedings for improper acts or
omissions in the exercise of their judicial functions
(d) The impartiality of a judicial body would be undermined when:
i) a judicial officer sits as a member of an appeal tribunal in case which s/he
decided or participated in a lower judicial body. In this case, a judicial officer
would be under an obligation to step down.
ii) a former public prosecutor or legal representative sits as a judicial officer in a
case in which he or she prosecuted or represented a party.
Bangalore principles also provides that there should be an appeal from the disciplinary
authority to a court.
7

Article 2(5) of the Constitution recognizes the general rules of international law as forming part
of the Laws of Kenya.

The Vetting of Judges and Magistrates Board ignored all the above provisions. Firstly, how
adequate was the time allocated to the Judges of Appeal for instance, to prepare their
defence when they were on duty and were infact informed of the decision via the media when
presiding over cases in Kisumu.

This in itself is in contravention of the provisions of the Constitution and the African Charter on
Human and Peoples Rights with respect to a fair hearing and not being subjected to inhuman
and degrading treatment.
An independent, effective and competent legal profession is fundamental to the upholding of
the rule of law and the independence of the Judiciary. If the Judges and Magistrates who are
accused of retrogressive and lack of impartiality and professional misconduct then what does
that mean of the Laws society of Kenya of the old constitutional order?

A newspaper report alleged that lawyers were targeting at least 16 judges for removal from
office.
8


7
Bangalore Principles of Judicial Conduct, See also The African(Banjul) Charter on Human and Peoples Rights,
African Human Rights Commissions Guiding Principles on the Right to a fair trial and Legal assistance in Africa.
According to the report, the Secretary of the Law Society of Kenya was quoted saying that the
LSK would ensure that Judges about whom complaints have been received would not return
to the bench. He said, we have laid down several strategies to ensure that they do not make
it back to the Judiciary.
9


The Secretary enumerated complaints against judges to include temperament, incompetence,
hostility, making disparaging remarks against lawyers, pending bankruptcy, disappointing
judicial pronouncements, arrogance, introducing stringent rules and a strict dress code,
delays in issuing judgments and rulings, misconduct and open bias against some lawyers.
While some of the issues are relevant and require investigation, others give the impression
that the Law Society might soon become a lynch mob.
10


It needs to restated that the vetting process is not an inquisition. It is a quasi-judicial process
where the candidate for vetting is afforded all due process guarantees. If the LSK already had
and presumably still has, a strategy to ensure that any judicial officer against whom there is a
complaint should not return to the bench, this raises the question of bias and whether LSK
ought to have been represented on the vetting Board or even participated in the nomination of
the members of the vetting Board.
11


This is one of the African Charter on Human and Peoples rights guiding principles on fair trial
and hearing;
The impartiality of a judicial body would be undermined when:
i) a judicial officer sits as a member of an appeal tribunal in case which s/he
decided or participated in a lower judicial body. In this case, a judicial officer
would be under an obligation to step down.
ii) a former public prosecutor or legal representative sits as a judicial officer in a
case in which he or she prosecuted or represented a party.

8
Sam Kiplagat Why Lawyers have singled out 16 Judges for dismissal from the Bench Sunday Nation Newspaper, 26
th

September, 2010: 4,5. Also see Amani Papers Volume 1 No. 6 September 2010
9
ibid
10
Dr. Ozonnia Ojielo, senior peace and development Advisor to the UN Resident and Humanitarian Coordinator in his
paper, Judicial Integrity and the Vetting process.
11
ibid
In view of this, is it then right to have Mr. Sharad Rao as the Chairman of the Vetting Board?
He once served at the State Law Office and, subject to the second provision as above, if he
sits on a panel that vets the Judges and then sits on the appeal panel, isnt this in
contravention of the African Human Rights Commissions Guiding principles on Fair
trail/hearing?
With this in mind, the Vetting Board cannot as well guarantee impartiality and seems to
contravene several international legal instruments as above.

CONCLUSION

A judges position demands the noblest attributes of the mind and heart, and the richest
endowments of education, the interpretation and application of law should be inseparable
from the idea that it is the servitor of justice. Its pursuits should never cross the bounds of
morality or deflect from the pathway hedged about with honor. No amount of loyalty to the
executive or any other state organ should prompt the slightest deviation from the truth nor can
it justify the misstatement of fact or deceit.
12


Whenever temptation rises in the life of a Judge let such a Judge recall the Judges oath:
I, .swear in the name of the Almighty God/(solemnly affirm) to
diligently serve the people and the Republic of Kenya and to impartially do Justice in
accordance with this Constitution as by law established, and the laws and customs of the
Republic, without any fear, favour, bias, affection, ill-will, prejudice or any political, religious or
other influence. In the exercise of the judicial functions entrusted to me, I will at all times, and
to the best of my knowledge and ability, protect, administer and defend this Constitution with a
view to upholding the dignity and the respect for the judiciary and the judicial system of Kenya
and promoting fairness, independence, competence and integrity within it.
13


In a 2008 Havard Business Review article, Should Managers have a Green Hippocratic Oath?
It was stated, Management, in other words, will have to become more like the learned

12
GEN WALLING McCRAY, PLLC: www.attorneymccray.com, 12
th
June 2012
13
Constitution of Kenya 2010
professions of Medicine and Law. Professions such as these are, at least in theory,
characterized by an orientation to serving society-and they have something the profession of
management does not have- a normative code or oath that encourages leaders to consider
the broader implications of their actions
14

Judges owe duty to the society and must at all times serve the society and not the interest of
an individual or a group of individuals.
In any case Judges should know that since the Nuremberg trials, the defense of following
superior orders is no longer enough to escape punishment.
Article 33 of the Rome Statute of the International Criminal Court says that following orders is
no defense when the order is 'manifestly unlawful'.
The Judges were therefore supposed to apply the law and not follow orders from the
Executive.
As Prof. Yash Pal Ghai puts it, Vetting is a symbol, a symbol of the commitment of millions of
Kenyans to honesty, integrity and justice. It is the symbol of the new era that the Constitution
has ushered in.
15

Some see a clear, nonpunitive, primary rationale behind vetting. In Greece, writes author
Sotiropoulos, vetting does not have a punitive rationale. . . . The rationale
for vetting is linked to the legitimacy of the new democratic regime.

Similarly, in Bosnia and Herzegovina. Mayer-Rieckh argues that the main
purpose of vetting was to build fair and effective institutions that would prevent
future recurrences of human rights abuse, rather than punishment.The rationale for vetting is
linked to the legitimacy of the new democratic regime.
The new regime aims to replace the prior one, which has been discredited, and the process of
replacement includes the removal of the personnel which operated the repressive state

14
Havard Business Review, 2008: www.hbrgreen.org, 11th June, 2012
15
Prof. Yash Pal Ghai, as quoted at allafrica.com/stories/201205020068.html, accessed on 11th June 2012
apparatus.
16


Lord Atkin said, Justice is not a cloistered Virtue: She must be allowed to suffer the scrutiny..
So in pursuit of justice, focus should be on the law, the due Process best leads to consistent
justice, criticism and complaints will arise but as Winston Churchill put it, Criticism may not be
agreeable, but it is necessary. It fulfills the same function as pain in the human body. It calls
attention to an unhealthy state of things.
It was Chief Justice Gleeson, who said:
The corollary of the obligation of judges to conduct their business in public, and to give
reasons for their decisions, is that they are exposed and are regularly subjected, to public
comment and criticism. The practical importance of this should not be underestimated,
especially in an age when attitudes towards authority are no longer deferential, and are
frequently the opposite. Being a judge is not a suitable occupation for the thin skinned.
17


This is a clear indication of the obligation and respect attached to the office of a Judge. The
need to carry out duties with due diligence and respect for the rule of law in rendering service
to the people.
As Chief Justice Dr. Willy Mutunga said in his key note speech at the Albany Law School, I
was myself interviewed by the parliamentary committee, on live television, and questioned
about, among other things, my finances, my attitudes to certain sensitive issues, my sexuality
and my earring! This might have been viewed as a degrading and inhuman process of
recruitment but at the end of it, the right person was selected.
The Judges and Magistrates should therefore be ready to undergo the vetting process and
the clean shall be free.
The CKRC and the Bomas drafts called for a wholesale overhaul of the Judiciary and indeed
the Constitution of Kenya 2010. The process has started by the vetting process. Resistance

16
Justice as Prevention;Vetting Public Employees in Transitional Societies, International Center for Transitional
Justice , Edited by Alexander Mayer-Rieckh and Pablo de Greif,

17
http://www.lawlink.nsw.gov.au/lec, 11th June 2012.
to change in any given changing environment is inevitable but justice shall be done. With the
Constitution, the destination is defined. Indeed vetting alone is not enough, the
Transformation process as propounded in the Judiciary Transformation Framework 2012-
2016 is a real demonstration that the Kenyan Judiciary is headed to its rightful place in
society.
Restoration of the Principles of Judicial accountability, judicial independence, honesty,
integrity, impartiality and professionalism underpinning public confidence in the countrys
judicial system is the ultimate goal.