Vetting Board went beyond mandate in report

By Apollo Mboya

Last week the Judges and Magistrates Vetting Board released its interim report for the period September 2011 to February 2013.

 The Board proposes as a way forward extensions of the vetting to non-judicial officers, including the police, and proceeds to attack the entire legal profession — especially what the Board refers to as “well established legal firms whom it accuses of having cozy relationship with judicial offices.”

The report is a classic something-for-everyone product. It is disappointing that a body purporting to boast of experienced legal minds did not remind themselves of the Sixth Schedule to the Constitution, in particular Article 23 thereof, requiring Parliament to enact legislation establishing mechanisms and procedures for vetting the suitability of all judges and magistrates in office on the 27th August 2010. Parliament enacted the Vetting of Judges and Magistrates Act 2011.

Amateurish

The restriction as to who the Board was to vet is therefore clear in the Constitution, and by proposing vetting of those not within their mandate, the Board has exhibited amateurish understanding of the law and waded beyond their remit.

The Board has not only bungled some of the vetting but is also accused of holding proceedings that do not conform to the norms of judicial fairness. While other judicial officers have been shown the door for inordinately delayed rulings and judgments, others with similar issues were conveniently allowed to pass through the sieve back into the judiciary with their inefficiencies.

Even as the Board accuses some unnamed established legal firms of being cozy with some unnamed judicial officers, it too exhibits cozy tendencies by lauding one judicial officer as follows…. “Sensitive, warm, intelligent and fair-minded judge…” It then proceeds to exonerate the officer after making a finding that the same judicial officer had one significant blot of inordinate delay in delivering of judgments and rulings. Others with this significant blot were not so lucky.

On what the Board calls ‘litigation culture’, it suggests on page 130 of the report that obsession with procedural technicalities should be discouraged, and there should be less use of interlocutory procedures and stay orders which contribute to endless litigation, without substantive matters being resolved.

While this suggestion is okay, it is a chorus, which is lifted from Article 22(3) (d) of the Constitution and provides that “the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities.”

Why has the Board wasted time by lazily repeating what is already constitutional instead of wading into a classic and scholarly writing through an intellectual disciplined process of actively and skilfully conceptualising, applying, analysing, synthesising, and/or evaluating information gathered from, or generated by, observation, reflection and reasoning? This is further compounded by lamentations on several issues including inaccessible information, delays in recruitment and replacement of Board members, difficulties of language interpretation for foreign Board members and strict legal timelines for the vetting process.

Outside influence

In the report, the Board lists judicial officers it found suitable with dissents and others with caveats. The fact that the Board in certain instances adopted voting methodology to arrive at some determination not only exposed it to accusations of impropriety, but also that some of its decisions were influenced from certain quarters.

This method of transacting business has exposed the Board to litigation. These categories of judicial officers with ‘dissents’ and ‘caveats’ — whatever those mean — carry baggage back to the judiciary which we must now accept and move on, courtesy of the Board. The report clearly indicates that the Board is wanting in its decision-making process, which in turn raises integrity questions.  Apart from the need to meet the statutory obligation, the biggest motivation for the Board is to prolong its existence and guzzle taxpayers’ money on the mistaken notion that it can be unconstitutionally vested with powers to vet anybody whether engaged in public or private business.

This crude attempt to prolong the life of the Board is misguided and methodologically flawed, since it will require constitutional amendments to expand the jurisdiction of the vetting Board. The obsessive preoccupation to extend the life of the Board is now misguided by the recommendations in the report in respect to advocates, police, paralegals, prison officers and probation officers.

Instead of making accusations against those who did not have a chance to defend themselves, the Board should hand over the information they have against the other professionals to the relevant bodies charged with their discipline.

The Board should avoid exhibiting prejudice against the so called “well-established legal firms” it terms as “cozy with judicial officers.” This vetting bloodbath that the Board is proposing is a ploy to perpetuate their continued existence in office.

What the Board is not telling Kenyans is how they intend to amend the constitutional provisions in the Sixth Schedule.

The writer is Secretary/CEO

Law Society of Kenya.

mboya@lsk.or.ke