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Kenya’s new Chief Justice must press on with cleaning up the judiciary

07 October 2016, 18:00

Jan van Zyl Smit, Bingham Centre for the Rule of Law, British Institute of International and Comparative Law

Kenya will soon have a new Chief Justice. Court of Appeal judge David Maraga was nominated by the Judicial Service Commission after a series of public interviews. He is expected to be confirmed by the National Assembly, barring any last-minute scandal. That seems unlikely.

In a country where accusations of judicial corruption are frequently levelled, the press has enthused about Maraga’s ethical reputation.

Special mention has also been made of the clean bill of health he received from the judicial vetting process established four years ago to root out corruption and other misconduct in the judiciary.

The vetting process proved to be highly contentious. Judges have claimed that it violated their independence. Others have expressed concern that vetting may not have eradicated judicial corruption, in the light of new scandals that have emerged concerning judges of the High Court, where a tribunal headed by Maraga recently recommended the removal of a judge. A Supreme Court judge was also hauled before a tribunal.

If he becomes Chief Justice, Maraga will have the opportunity to build on the legacy of the vetting process, and to ensure that it is not misunderstood.

What was the vetting process?

Kenya’s 2010 Constitution required all judges and magistrates to undergo individual screening, referred to as “vetting”. The reason for this was that the judiciary was thought to suffer from systemic corruption. Even worse, perceptions that senior judges were too close to government seemed to have played a part in escalating the post-election conflict of 2007-2008.

A Judges and Magistrates Vetting Board was convened in 2012 and recently published its final report. The board vetted 53 judges and 298 magistrates. It found 11 judges and 14 magistrates to be unsuitable for judicial office, leading to their removal from the judiciary.

Besides the logistical feat of screening so many judicial officers, the Kenyan vetting process has been an impressive achievement for two reasons.

The first is that it represents an innovative and balanced way for a state in constitutional transition to manage the risks of retaining existing judges who have come under generalised suspicion. This was done without losing all their skills and experience. In this, Kenya may have contributed a new model that will be useful to other transitional societies.

The second is the way in which the vetting process was developed. Both the legal framework and the implementation were shaped by intense bouts of negotiation and significant periods of collaboration. These occurred between politicians, judges, lawyers and civil society – groups which often don’t see eye to eye.

A new model for transitional societies

New democracies from Latin America to Eastern Europe have struggled to find effective ways of ensuring the integrity and competence of their judges. There is no single established model for how to tackle this challenge.

In stable constitutional democracies, the investigation and disciplining of judges is usually left to bodies either wholly or substantially composed of judges. This is done to protect the institutional independence of the judiciary. But this approach breaks down when there are more than a few bad apples in the judiciary, a situation which sadly many transitional societies face.

This mistake undermined the credibility of Kenya’s earlier “radical surgery” in 2003 when then President Mwai Kibaki attempted to root out corruption in the judiciary. Both evidence-gathering and disciplinary hearings were entrusted to judicial bodies. To make things worse, the President and his newly appointed Chief Justice intervened in the process by publishing a “list of shame” before all the judges concerned had been shown the allegations against them.

Opportunity for a new approach

The opportunity for a new approach came in 2008. The National Reconciliation and Dialogue Agreement, set up to address the post-election violence, identified both constitutional and judicial reform as objectives.

The drafting of a new constitution was delegated to a Committee of Experts, which finally recommended vetting as a middle route between dismissing all judges and allowing them all to retain their positions. The declared aim was to minimise the loss of experienced judges while ensuring those who were left were fit to uphold the new Constitution.

While the committee of experts was consulting on these issues, a judicial task force was also inquiring into the state of the judiciary and possible reforms. The task force backed a vetting process. Finally, the public voted overwhelmingly in favour of the draft Constitution in a referendum in August 2010.

It was left to Parliament to implement it, which MPs did by passing the Vetting of Judges and Magistrates Act.

The vetting board, though not a judicial body, was made up of three Kenyan lawyers, three representatives of civil society, and three serving or retired judges from other Commonwealth jurisdictions. This meant that the board had Kenyan legal expertise, the experience of Kenyans who had lived under the old judiciary and international judges who were not likely to be drawn into local vendettas.

Climate of suspicion

But the board still had to contend with a climate of suspicion from both the public and the judges. Only two chose to be interviewed in public. One of them was Maraga, who dramatically insisted on swearing an oath that he would never take a bribe. More importantly, the board rejected the few complaints that had been made against him and praised his dedication and efficiency as a judge and his work with rural justice providers and prisons.

All judges and magistrates received a written decision on their suitability from the board, which was also published. Decisions were based on the board’s assessment of each judge or magistrate’s work record, financial disclosure form, complaints received from the public and how the judge or magistrate dealt with questions posed by board members during the vetting interview.

The interaction between the board and the courts was fraught at times. There were numerous attempts by judges to challenge the legality of the vetting process. On several occasions orders were issued suspending the process. It took a courageous decision of the Supreme Court to end these challenges by referring to the clear constitutional words which shielded the vetting process from review in the courts.

A major challenge facing the board was the need for cooperation and support from other institutions. Information sharing was sometimes limited, and there was no special protection for whistle-blowers who wanted to reveal judicial corruption. The board developed its own impressive machinery for receiving and investigating complaints against judges and magistrates.

Complaints against 47 magistrates have now been forwarded to the Judicial Service Commission (JSC), because the Supreme Court ruled that they fell outside the vetting period. If Maraga is appointed Chief Justice then he will also chair the JSC. Dealing with these complaints will be an important item on the JSC’s agenda.

The legacy of vetting

Historians will have the last word about whether the board was effective in “restoring confidence in the judiciary”, its stated mission. The entire process clearly affected the reputation of individual judges. It certainly strengthened the credentials of some, such as Maraga, while exposing the misconduct of others.

It cannot be assumed that the vetting process uncovered every instance of judicial corruption or other wrongdoing prior to 2010. But it is an important step that direction. Maraga’s leadership will be essential to continuing this work.

The author assisted the Judges and Magistrates Vetting Board as a research consultant. All views and opinions expressed are his own and not those of the Board or any of its members.

The Conversation

Jan van Zyl Smit, Associate Senior Research Fellow, Bingham Centre for the Rule of Law, British Institute of International and Comparative Law

This article was originally published on The Conversation. Read the original article.

- The Conversation


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