There must be something wrong with our criteria for appointment of judges if the late corrupt Zachaeus Chesoni and the sadistic Bernard Chunga could qualify to sit in the Judiciary. Each was an appointment that was so outrageous that it cast doubt on the standards used to evaluate the suitability of a person to assume judicial office.
The qualifications for appointment to the bench are contained I n Section 61 (3) of the Constitution. The section provides three alternative qualifications for appointment:
A person qualifies to be a judge if he has ever been a judge of a high court or a court of appeal in any Commonwealth country or in the Republic of Ireland.
A person may also be appointed if he has been an advocate of the High Court of Kenya for at least seven years.
Lastly, a person may be appointed if for at least seven years he has held the qualification set out in Section 12 (1) (a) – (d) of the Advocates Act as in force on 12th December 1963.
These last qualifications are alternative to being an Advocate of the High Court of Kenya or a judge from the Commonwealth.
Section 12 of the Advocates Act as it read in 1963 provides four other alternative qualifications. A person qualifies to be a judge in the Kenyan High Court if for at least seven years: –
He has been a barrister-at-law of England or Northern Ireland, or of Ireland if called to the Bar before 1st October 1921. He would also qualify if he were an advocate or solicitor in Scotland, a solicitor in England or Northern Ireland, or Ireland if qualified before `1st October 1921, or a writer to the Signet.
He has been a legal practitioner who with a tight of audience in any high court in the Commonwealth and by being such a practitioner can be appointed as a judge in that country.
He qualifies to practice as an advocate in Canada, Ceylon, New Zealand, South Africa, Australia, India, Pakistan or other self-governing country in the Commonwealth and had resided in the Kenya colony for 12 months.
He holds a degree in law from a prescribed university or university college and has subsequently attended pupilage and sat for any prescribed examination.
When these qualifications are analysed, one can see how prone they are to abuse. Start with a judge of the Commonwealth. Is it sufficient that a person is a judge in the Commonwealth? Doesn’t the Commonwealth include such countries as Nigeria and Tanzania that top the list of the world’s most corrupt nations? If more than half of our judiciary was corrupt, imagine the situation in those countries, yet our Constitution says they qualify to be judges of our High Court.
The Commonwealth also includes like Sierra Leone and Mozambique that have been plagued by civil strife to the extent of having no functional government. But they can still supply us with judges? There are other nondescript nations like Trinidad and Tobago, Antigua and Bermuda, Saint Kitts and Nevis, Saint Vincent and the Grenadines. How can we say they qualify to be judges in our country so long as they were judges in their own country?
Or even worse, they will qualify if they have been legal practitioners in those countries. So, an advocate in Sierra Leone qualifies under our Constitution to be a judge, though unknown to us he could have been part of the regime that chops off people’s hands. An ambulance chaser in Antigua and Bermuda also qualifies. When you think of some legal practitioners here at home, the prospect is frightening. Yet, it’s constitutional.
One does not even need to be a legal practitioner. Section 12 (1) (d) of the Advocates Act as it was before independence provides for qualification if you hold a university degree, have attended pupilage and passed law school exams. Section 61 (3) (c) requires one to have held this qualification for seven years. One does not even need to have been admitted as an advocate.
The Constitution is silent on moral aptitude, neither does it require that a person should have an acceptable knowledge of Kenyan law, or to exhibit ay brilliance in law. There is no disqualification if one has ever been charged or convicted of a crime or other professional misconduct.
The Constitution leaves the vetting of persons to the Judicial Service Commission. It provides for the appointment of judges by the President acting in accordance with the advice of the Judicial Service Commission. It does not say what type of advice the Commission should give the President. For instance, can the President reject advice on personalities and insist on advice on professional qualifications only? Is the President duty bound to follow the advice given? It seems not.
The Judicial Service Commission has no known conditions that must be satisfied by persons before it can recommend them to the President. Its advice is ad hoc and based on the feelings of the members at that time.
An acceptable criterion for appointment of judges should be established by undertaking the following: –
A. AMENDMENT OF THE CONSTITUTION
Do away with foreigners
The current criteria for appointment of judges established in 1963 and catered for the situation in the country then. There were no qualified locals to fill a judicial vacancies and the qualifications had thus to allow foreigners. This is no longer necessary.
Appointment of foreign judges on contract is also open to manipulation as has happened in the past. Membership of the Kenyan Judiciary must be restricted to citizens of the Republic of Kenya who must be evaluated along local professional qualifications.
Expand the criteria
A basic qualification of seven years is a threadbare criterion for determining a person’s suitability for the Kenyan Judiciary. The quality of the professional qualifications must be considered. For instance, the draft Constitution requires a candidate to not only have 10 -15 years experience but also to have the intellectual ability as demonstrated by academic qualifications and legal practice and be of high moral character and integrity.
B. ESTABLISHMENT OF A CONFIRMATION PROCESS
The importance of a confirmation process is that it enables all interested parties to have a say in the process of appointment of public officers. Currently, apart from the Judicial Service Commission, which is entitled to give advice to the President, no other party has a right of audience.
But when we appoint practicing advocates as judges, the Law Society of Kenya and the Advocates Complaints Commission are the single most important bodies in the vetting process. The Judicial Service Commission cannot properly advise the President unless it consults with these bodies, but there is no duty on it to do so.
We should therefore have a forum, whether before the Commission or the National Assembly, where recognized interested groups can be invited to make submissions on nominees. Examples of other bodies that must be consulted are the Kenya Police and the Criminal Investigations Department, Kenya Anti-Corruption Commission and the Public Service Commission.
With a strict procedure being followed before judicial appointments, the system will be less vulnerable to the sort of abuse that it has been subjected to over the last 25 years Kenya must have a system that does not allow another Chesoni or Chunga to slip through.