RESTORING PUBLIC CONFIDENCE INTHE JUDICIARY

FIRST REPORT OF THE KENYA JUDGES AND MAGISTRATES VETTING BOARD

1.    On the 4th of August, 2010, the people of Kenya voted at a national referendumto approve a new Constitution. The referendum was the culmination of a two-decade search fora new constitutional dispensation in Kenya,1 a dispensation that is anchored firmly in the sovereignty of the people of Kenya.2The new Constitution came into force upon its promulgation on the 27thof August, 2010.3

2.    In the period during which the agitation for a new constitution took place, the Kenyan judiciary had come under sustained criticism for its perceived failure to uphold the rule of law. The reports of various bodies, official and non official, among them committees comprising judicial officers, highlighted the public perception of the judiciary as a corrupt institution. For instance, the Constitution of Kenya Review Commission in its report titled,

“The People’s Choice: The Report of the Constitution of Kenya Review Commission” noted among the concerns with regard to the judiciary that, “The judiciary rivals politicians and the police for the most criticizedsector of Kenyan public societytoday. For ordinary Kenyans the issues of delay, expense and corruption are the most worrying. For lawyers, there is concern about competence andlackof independence.”⁴

3.   In addressing corruption as an obstacle to the rule of law, the Government set up the ‘Integrityand Anti-corruptionCommittee of the Judiciary in Kenya,2003’ to implement policy known as “radical surgery”5. The committeeidentified examples of “judicial corruption, misbehaviour or want of ethics”6  in the conduct of five out of nine Court of Appeal Judges (56%), 18 out of 36 High Court Judges (50 %) and 82 out of 254 magistrates (32 %).7   However, before the judges and magistrates involved were informed of the allegations madein the Report, the media published their names in a “List of Shame”. The Acting Chief Justice stated publicly that those implicated should resign or face suspension without pay or privileges, together withtribunal proceedings.8Justice Waki from the Court of Appeal, along with Justices Mbogholi and Aganyanya, contested the accusations madein the report. They were eventually reinstated to the Bench.9The Judicial Service Commission imposed retirement on 70 out of the 82 magistrates named in the Report, on the grounds of public interest.10This approach to “radical surgery” attracted much criticism, particularly in light of the fact that no notice was given to judges and magistrates before they were publically named and accused of corruption .11 The manner in which these judges were compelled to resign was also a source of concern. This process was considered to undermine judicial independence and the right to due process.12

4.   Yet, radical though the process was, it failed to restore public confidence in the judiciary.13  On the eve of adoption of the Constitution in 2010, a judiciary-led taskforce on judicial reform noted that

“….corruption remains  one of the greatest challenges to the judiciary. The Task Forcereceived representations that whereas there have been measures to address corruption within the judiciary, the results have been suboptimal as borne out by the number of judicial officers and staff who have been disciplined by the JSC on corruption claims or otherwise facedcorruption charges in the courts of law. As a result, corruption remains a majorcontributionto the Judiciary’sinstitutional decline and low public confidence in the judicial process.”14

5.   Indeed, clamour for a fair, impartial and independent judicial system in the country had become more rather than less pronounced. The lack of confidence in the judiciary had in fact had profound consequences for the life of the nation. More than a thousand people had been killed and hundreds of thousands displaced, when the controversial outcome of the presidential election in2007 had not been contested in court, but instead been followed by war in the streets.15

6.   These events had tragically borne out the truth of the statement in the Preamble to the Bangalore Principles of Judicial Conduct, that public confidence in the judicial system and in the moral authority and integrity of the judiciary is of the utmost importance in a modern democratic society. InKenya this public confidence had virtually collapsed.16  Judicial reform was now identified as one of the areas of focus towards restoring the credibility,integrity and independence of public institutions generally.17     Transformation of the judiciary consequently featured prominently in the normative value system, design and text of the new Constitution.

7.   Thus, Chapter 10 of the Constitution, entitled ‘Judiciary‘, contains a large number of provisions intended to create a judiciary that, by correcting and transcending the deficiencies of the past, would cometo enjoy the confidence of the public and become a central element in the new democratic dispensation. The Constitution declares thatjudicial authority derives from the people, re-affirming the sovereignty of the Kenyan people.18 Thecourts and the tribunals are requiredto exercise their judicial authority in a manner that ensures that justice is done to all irrespective of status, that justice is not delayed and that justice is administered without undue regard to procedural technicalities.19 The independence of the judiciary is guaranteed by the requirement that the judiciary shall not be subject to the control  or  direction of any  person or authority in the exercise of the judicial authority.20 Appointments to the judiciary are done by an independent and broadly-based Judicial Service Commission,21 unlike in the previous constitutionaldispensation where the President had a personal discretion to appoint judicial officers.22The Constitution also established anapex Supreme Court23 to provide  fresh leadership to a judiciary that would be guided by comprehensively enunciated values and principles designed to ensure justice, fairness, inclusivity and social responsibility.24

II. THE KENYA JUDGES AND MAGISTRATES VETTING BOARD

9.       The Sixth Schedule to Constitution, which deals with transitional matters, provides in article 23 that;

“(1) Within one year after the effective date Parliament shall enact legislation which shall operate despite Articles 160, 167 and 168, establishing mechanisms andprocedures for vetting within a timeline to be determined by the legislation, the suitability of all Judges’and Magistrates whowere in office on the effective date to continue to serve in accordance withthe valuesand principles set out in Article 10 and 159.

23 (2) A removal,ora 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 reviewby,anycourt.”

Theeffective date being the day on which the new Constitutioncame into force, namely 27thAugust 2010,25thevetting process accordingly became applicable to all judges and magistrates who were in office on or before that date. Judicial officers appointed after that date were accordingly not subjected to vetting.

10. Parliament duly enacted the Vetting ofJudges and Magistrates Act, 201126(the Act) which came intoforce on 22^nd March, 2011. The Act establishes an independent board to be known as the Judges and Magistrates Vetting Board (“the  Board”).27 Thefunctions of the Board are, ‘Tovet judges and magistrates in accordance with the provisionsof the Constitution andthis Act.’28 The term ‘vetting’ isdefined as „the process by which the suitability of a serving judge or magistrate to continue serving in the judiciary is determined in accordance with this Act.’29

11.The Board consists of nine members, namely, Chairperson, a Deputy Chairperson and seven other members. Six of the members are citizens of Kenya, of whom three are lawyers and three non- lawyers. The six Kenyan members were appointed on 3rd September 2011 through a competitive process in which the public was actively involved.30They are Mr. Sharad Rao-Chairperson (Lawyer), Mrs. Roseline A. Odede-Vice Chairperson (Lawyer), Mr. Justus Munyithya, HSC (Lawyer), Ms. Meuledi Iseme- (Non-lawyer), Prof. Ngotho Kariuki (Non-lawyer) andMr. Abdirashid Abdullahi (Non-lawyer). They weresworn in on 12thSeptember 2011.

12. The remaining three members are non-citizens of Kenya whoare serving or retired judges, each of whom should have served as a Chief Justice or a judge of a superior court in a Commonwealth jurisdiction.31 They are Hon. Chief Justice Georgina Wood from Ghana, Hon. Justice Albie Sachs from South Africa and Hon. Justice Frederick Chomba from Zambia. After Chief Justice Georgina Wood of Ghana had been sworn in on 3rd  November 2011, Justice Albie Sachs of South Africa on 18th  January 2012 and Justice Frederick Chomba of Zambia on 19th  January 2012, the composition of the Board was complete.

13. The Board was now faced with the task of vetting 58 judges, on the effective date, who were on the Court of Appeal and the High court, as well as 352 magistrates, the Registrar of the High Court and the Chief Court administrator, all of whom were serving on the effective date.32

14. The Act provides that the vetting process once commenced, shall not exceed a period of one year with the possibilityof a further one year extension by the National Assembly on request by the Board.33

15. To ensure expeditious disposal of matters, the Act allows the Chairperson to constitute three panels comprising three members each, to work concurrently.34Eachpanel must have one Kenyan lawyer, one Kenyan non-lawyer and one non-Kenyan Commonwealth judge. The question of when the panels shall be constituted was one of the first issues discussed by the Board, and is discussed below.35

16. The Constitutionand the Act establish a comprehensive and objective system of factors that must guide the vetting process. Thus, the Constitution declares that the Board must vet the suitability of the judges36in accordance withthe values and principles set out in Articles 10 and159. 37Article 10 includes amongst its binding national values and principles: the rule of law, democracy and participation of the people, humandignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized, good governance, integrity, transparency and accountability.38Article 159 goes on to enunciate three guiding principles of justice: it should be done to all irrespective of status, that it should not be delayed and that it should be administered without undue regard to procedural technicalities.39

17. For its turn, the Act provides both general and specific guidance. In general terms it emphasizes that the Board, “shall at alltimes be guidedby the principles and standards of judicial independence, natural justice and international best practices.40More specifically, it requiresthat when determining the  suitability of a judge, the Board must consider the following: constitutional criteria for appointment; past work record, including prior judicial pronouncements; criminal cases or prosecutions against  the  judge or  magistrate  concerned; and complaints or other relevant information received from any person or body, including the LawSociety of Kenya, the Kenya Anti- Corruption Commission, the Attorney General, the Judicial service Commission and other identified bodies. 41

18. In considering these matters, the Board  is expressly required to take  account of professional competence, written and oral communication skills, integrity, fairness, temperament, good judgment, legal and life experience and demonstrable commitment to public and community service.

19. Each of the qualities is then filled out with detailed elements.42 Because of their special relevance in the case of judges of the Court of Appeal, the details concerning integrity and fairness merit being set out in full. Thus, integrity is said to include;

i)     a demonstrable consistent history of honesty and high moral character in professional and personal life;

ii)    respect forprofessional duties, arising under the codes of professional and judicial conduct;

iii)    ability to understand the need to maintain propriety and the appearance of propriety.

20.Similarly, fairness is said to include;

(i)     A demonstrable ability to be impartial to all persons and commitment to equal justice under the law; and

(ii)    Open-mindedness and capacity to decide issues according to the law, even when the law conflicts with personal views.

21. The Act provides that all informationobtained by the Board during the personal interviews, and records of the judge being vetted, shall be confidential.43 Italso states that the hearing by the Board shall not be conducted  in  public,  unless  the  concerned  judge  or  magistrate  requests a  public hearing.44

22. The Act goes on to state that the first judges and magistrates to be vetted shall be the Court of Appeal Judges, followed by the Judges of the High Court, the Registrar of the High Court, the Chief Court Administrator, Chief Magistrates and other magistratesin that order.45

23. The Board shall upon determiningthe unsuitability of a judge or magistrate to continue serving in the judiciary, within 30 days of the determination inform the concerned judge or magistrate of the determination in writing, specifying the reasons for the determination.46 Once informed of the decision of unsuitability, the judge or magistrate shall be deemed to have been removed from service.47The decision to remove a judge or magistrate shall be made public.48

24. A judge or magistrate who is dissatisfied with the determination may request for a review by the same panel within seven days.49The Board shall not grant a request for review unless it isbased,

a)  on the discovery of a new and important matter, not within the knowledge of the judge or magistrate at the time of the termination, or

b)  some mistake or error apparent on the face of the record.50

The decision by the Board on review shall be final.51

25. The Board has inherent powers to regulate its own procedure and make Regulations to enable it carry out its functions.52 On 24th  January 2012, the Board published Regulations with a view to providing a fair, just and effective vetting process.53

IV. PROCESS FOLLOWED BY THE BOARD Preliminary Activities

26.Towards the end of 2011 the Board put various Notices to the Public in the Daily Nationand Standard newspapers, requesting the public to submit complaints in the prescribedform.54  The Board also wrote to the Chief Registrar requesting files (both open and confidential), as well as information and complaints which may have been lodgedwith the judiciary with respect to the judges who were to be vetted.55   Further, the Board wrote to the Chief Registrar asking her to facilitate the distribution of vetting questionnaires to all the judges.56 Thejudges of the Court of Appeal were required to complete and submit the questionnaires on or before 10th January 2012. Those of the High Court were requiredto complete and submit the questionnaires on or before 31st January 2012.

27.As far as we are aware, all the judges completed and returned the questionnaires, some doing so more comprehensively than others. We wish to thank the Chief Registrar for her co-operation in this respect.

28. In addition, the Board took steps to inform the public generally about the nature of its work and the manner in which the public could make a contribution. Thus, the Chairperson of the Board held various press conferences.57Finally, after all the members to the Board had been formally appointed, andsubsequent to the holding of two planning workshops,58 the Board initiated forums in various parts of the country. These were to inform, educate and sensitize the public on its role and mandate, as well ason the manner in which the public and the Law Society of Kenya could beinvolved.59

29. Information and/or complaints touching on the judges were received by the Board. These included complaints from members of the public. They also included complaints or information furnished by the Law  Society  of  Kenya, the  Ethics and Anti-Corruption  Commission, the  Judicial Service Commission and the International  Commission of Jurists.  Unfortunately, and despite written requests from the Board, no complaints or information were received from the Advocates Disciplinary Committee, Advocates Complaints Commission, Attorney General, Public Complaints Standing Committee, Kenya   National Human  Rights and Equality  Commission, National Intelligence Service and the police.

30. Every complaint received was looked at and considered by all members of the Board. For purposes of preparing for the interview, certain complaints were identified by the Board60and summarized for presentation to the judge or magistrate concerned.61

31. Notice to file a response, plus an addendum containing additional matters that the Board intended to discuss with the judge, wasthen served upon each judge, together with a Notice requiring the judge to appear before the Board on a specified date.62 In compliance with the rules of natural justice63the Board gave each judge:

b) an opportunity to be heard in person;

c) the right to be represented by Counsel(s) of their choice and;

d) the opportunity to question the complainants and any witnesses appearing before the Board.

32. Each judge was personally served with the Notice to file a response and the Notice to appear64. The judges filed their responses and also appeared before the Board as required.The judges were given anopportunity to determine whether they preferred a publicor private hearing.65  All the judges opted for a private hearing. It wasnow possible for the vetting process to commence.

33. Although the Chairperson of the Board has a discretion to constitute three panels of the Board to work concurrently,66 theBoard decided that in the first phase of interviews, namely, those with members of the Court of Appeal, it should sit as a full Board. This was because the vetting process wasquite novel; the members had vastly different life and professional experiences; there was the needto develop a consistent approach to dealing with any legal or procedural problems that might arise; and it was important to establish a uniform manner of weighing and applying the criteria that should guide the members when making their evaluations of suitability.Sitting as a full Board at this early stage would also serve to reduce the danger of the outcome in any individual case being perceived as having been unduly affected by the particular composition of the panel concerned. Accordingly, all nine members who were available67  satin each interview of the nine judges who were on the Court of Appeal on 27thAugust 2010.

34. The provisional view of the Board is that, logistical considerations permitting,even when in future theBoard sits in panels of three, the panels will make recommendations to the full Board, which then will take the final decision as to the suitability of a judge. In this way, maximum consistency will be maintained.

Commencement of thevetting process

35. The full Board was now in a position to start the opening phase of the interviews, beginning with the Court of Appeal judges to be followed by the two High Court judges now servingin the Supreme Court.68

36. The vetting process commenced on 23rd  February 201269  when the most senior judge on the Court of Appeal, Honourable Justice Riaga S.C. Omolo, appeared before the Board. The subsequent

interviews were conducted on the dates as indicated;

·   Honourable Justice Philip K. Tunoi was interviewed on 28thFebruary 2012.

·    The interview of Honourable Justice Joseph Nyamu started on 24th  February 2012 and by agreement continued on 9thMarch 2012 and 12thMarch 2012.

·   Honourable Justice Erastus Githinji wasinterviewed on 6thMarch 2012.

·   Honourable Justice Alnashir Visram was interviewed on 7thMarch 2012.

·   The interview of Honourable Justice Emanuel Okubasu started on 8th  March 2012 and by agreement continued on 21stMarch 2012 and 27thMarch 2012.

·   The interview of Honourable Justice Onyango Otieno started on 15th  March 2012 and by agreement continued on 28thMarch 2012.

·    Honourable Justice Philip N. Waki was interviewed on 20thMarch 2012.

·    Honourable Justice Samuel E.O. Bosire was interviewed on 26thMarch 2012.

37. The Chairperson of the Board introduced all members of the Board present, the Assisting Counsel, the Secretary to the Board, other members of the secretariat and the Hansard staff. The judge was then given an opportunityto introduce himself and his counsel.

38.The Chairperson then sought the judge‘s views on whether or not  thejudge objected to  the jurisdiction of the Board or the presence of any member of the Board. None of the judges raised any objection in either respect, or to the presence of the other persons introduced.

39. The Board then started the interview by requiringthe judge to respond to specific complaints as provided in the Notice to file response. Thereafter, theBoard dealt more generally with the relevant considerations.70

40.In conducting each interview the Board relied on the following documentation:

v) Transcripts of interviews conducted with the judge concerned by the Judicial Service Commission forthe positions of Chief Justice or Judge of the Supreme Court; and

vi) Anymaterial available on the past work record of the judge including Rulings made and Judgments delivered.

41. Each interview took at least several hours, and was recorded by Hansard. Postponements were agreed to when fairness and the need to clarify contested issues required. All members of the Board participated actively in the questioningof the judges and witnesses. On several occasions, the proceedings lasted well into the evening.  At the end of each interview, the judge and counsel were given an opportunity to makefinal remarks. In each case, an express opportunity was given to say whether thejudge or counsel had any objection to the procedure that had been followed. In no case was any objection made.

42. As mentioned above, the Board was guided in its decision-making by the principles and criterialaid down in the Constitutionand the Act. During the interviews, the Board accordingly discussed a widerange of matterswith the judges, including, the rule of law, human dignity, equity, social justice,

equality,  human  rights,  non-discrimination,  protection  of  the  marginalized,  good  governance, integrity, fairness, transparency, and accountability. The interviews also touched on issues of delayed justice, fairness of process and procedural technicalities.

43. From the information provided in the questionnaire filled in by the judges, coupled with therulings and judgments of the judges as well as the interviews conducted with each judge, the Board was able to  assess each judge‘s  intellectual capacity, legal judgment, diligence, knowledge of the law, organizational and administrative skills and ability to work well with others.

44. The interviews also enabled the Board to get some familiarity with the temperament of each judge, and to have a discussion with the judges on their legal and life experiences, as well as to evaluate theircommunication skills. Finally, and most important, given that the technical competence of senior judges was rarely put in issue, the Board was able to deal in some detail with issues of integrity, fairness and good judgment.

45. The Board was aware that the vetting process is sui generis - of its own kind. It cannot be equated with, or closely modeled on, impeachment or a disciplinary hearing, or a criminal or civil trial, or a job interview or a security clearance. Its modalities have to be structured around theobjectives, processes and values identified by the Constitution and the Act. The Board accordingly had to function carefully and appropriately within these specific constitutional and statutory parameters.

46.The Board‘s role has not been to carry out a purge but to conduct a vetting process. A purge would have involved automatic exclusion based purely on actual or presumed membership of an identified group. The vetting procedure, on the other hand, is founded on the rule of law involving the assessment of an individual‘s responsibility in the light of an overall evaluation of the extent to which the conduct at issue is compatible with the criteria established by the Constitution and the Act.72Thusthe Board‘s objective was not to punish, discipline, exonerate orreward the judge, but to help restore public confidence in the judiciary. If theprocesses followed were themselves arbitrary andits decisions were not solidlybased on material before it, public confidence would notbe restored. Equally, if judges who had manifestly failed to meet the required criteriawere passed as suitable, public confidence would not be restored.

47. Determinations of suitabilitycannot be made in a pre-ordained or mechanical manner. Nor can therebe a one-size-fits-all formula applicable in all cases. Each determination must be fairly and appropriately arrived at, and has to be based on a holistic evaluation of suitability founded on the specific material before the Board, coupled withthe answers given andthe impression made by the judge at the interview.

48. The primary function of the Board is to vet and not to investigate. The amplitude and success of its work has accordingly been heavily dependent on the information and complaints presentedto it, whether by members of the public or the Law Society of Kenya or otherpublic bodies. Unfortunately, a large  number  of  bodies  identified  in  the  Act as  potential  sources  have  not responded to requests from the Board for information.

49. The Board was mindful that its role was not to sit as a court of appeal in relation to the factual or legal correctness of rulings given or judgments delivered by the judge. The Board was also aware that many litigants who lose a case are convinced that the court could only have gone against them because of bias or corruption. At the same time the Board found it both appropriate and necessary to examine the past work record of the judge, including prior judicial pronouncements that were said to manifest a lack of fairness and impartiality. This was particularly important in relation to questions of whether the judge had compromised the independence of the judiciary by showing a judicially- unacceptable proclivity to immunizethe powerful  and the wealthy from independent  judicial scrutiny. In this regard, the point of departure of the Board was that judicial independence must be jealously guarded; each judge has an individual judicial conscience; in anyjurisdiction, some judges tend to be literalist in their approach to interpreting laws, others more purposive; some develop a reputation for being executive-minded, others for favouring the individual; some as being tough on crime, others as soft. Indeed, judicial philosophy and approach can vary from judge to judge, decision to decision and country to country. These were not issues of direct concern to the Board. Itsqueries, rather, related not so much to whether a particular case had been correctly decided on the facts or the law, but to whether the decision had been so extraordinary in itself, and so embedded in a larger pattern of legally-strained decisions, as to point to the existence of a judicial mindset that was somanifestly lacking in fairness and impartiality as to undermine public confidence in the judiciary. Associated with this was the issue of whether the decision(s) involved an undue degree of bending of the law in order to achieve  a pre-determined result favouring powerful personalities.

50. Because all the judges interviewed were members of the Court of Appeal, certain special factors werepresent: all had long years of experience in the judiciary, duringwhich they had acquired general technical competence; all had survived the process of radical surgery; all had been extensively and recently interviewed by the judicial Service Commission when they had applied for positions as Chief Justice or as members of the newly-created Supreme Court; and, finally, all had adjudicated on controversial pieces of litigation over a long period of time.

51. It should be noted that as far as Court of Appeal judges are concerned, in spite of widespread public perceptions of continuing corruption in the judiciary, relatively fewcomplaints of bribe-taking were received. In the nature of things, people who offer bribes are unlikely to come forward, knowing that they may both face sanctions for what they havedone and see judgments granted in their favour setaside. This does not, however, allow the Board to act on the basis of public perceptionsof bribe- taking in general. It must be guided by the evidence in each particular case. Should it happen, then, that an individual judge who is widely accepted as havingbeen “onthe take‘‘ ends up being declared suitable to remain in office, that would be the result of the requirement to base the Board‘s determination on evidence, and not on a general perception.If those who knowof corrupt behavior donot themselves come forward, they cannot complain when persons they are sure are corrupt, pass through the vetting net. Conversely, it would be grossly unfair to tarnish those judges who have conducted themselves honorably for years and decades, because some of their fellows - we do not knowexactly who - might have taken bribes. Finally, it should be noted that in the Court ofAppeal, judges sit in panels of three or more, which reduces the scope for anindividual judge to influence an outcome corruptly.

52. The Board was aware of the fact that, even though early retirement rights would not be affected, removal of the judge from  the Bench would have a profound  impact on  both  the  judge‘s professional career and his general reputation.73 Given the pressure of large numbers of interviews having to be conducted in a relatively short period of time, it was particularly important not to lose sight of the need to uphold the principles of natural justice. In addition, the Board was consciousof the fact that the Constitution and the Act required it, and it alone, to have both the first and the final word on the suitability of the judge.74 Allof these factors underlined the importance of the Board weighing the evidence before it with special care, and of ensuring that its evaluations weresolidly based on the material before it - the need to be resolute could not override the necessity to be principled and fair. Indeed, restoring public confidence in the judiciary requiredthe Board to function in a manner that was simultaneously firm, fair and expeditious. It had to conduct itself without fear, favour or prejudice. In a word, the vetting process itself had to be just.

53. Guided by the above approach, bearing in mind the need to restore public confidence in the judiciary, using the processes outlined above, applying the criteria laid down in the Constitution and the Act, taking account of the requirements of natural justice and the need to look at the suitability or unsuitability of the judge as an individual, the Board has considered and is reflecting on all the material before it, with a view to making its final decisions and determinations in each case.

54. As mentioned above, 75the Act provides that upon determining the unsuitability of a judge or magistrate, theBoard shall within thirty days of the determination inform the judge concerned of the determination, specifying the reasons for the determination.76Subject only to a limited form of review, once informed of the decision, the judge shall be deemed to have been removed from service.77The Act then states that the decision to remove a judge from service shall be made public. Taken together, these provisions establish two minimum obligations on the Board. The first operates for the benefit ofthe judge concerned, who must receive a decision of unsuitability, thus permitting apossible application for review to the Board. The second is for the public to know that a decision of unsuitability has been made.These are minimum requirements. The Act is silent, however, on two further questions. The first is whether the Board may, and should, provide reasons to the public as well as to the judge concerned, when it announces a decision of unsuitability. The second is whether it should publicize determinations of suitability as well as of unsuitability, and, if so, should it provide its reasons for so doing.

55. There are strong reasons favouring maximum publicity. In broad terms, all state organs, including this Board, are bound by the national principles of transparency and accountability.78Furthermore, every citizen has the right of access to information held by thestate,79which is obliged to publish and publicize any important information affecting the nation.80At the same time, the Act has expressly limited the public right to information in two clear respects.81The first is that all information obtained by the Board during personal interviews and records of the judge being vetted shall be confidential.82  The second is that the hearing by the Board shall not be conducted in public, unless the concerned judge requests a public hearing.83The Board is bound by and must respect these provisions.

56. The question, then, is how best to reconcile the public‘s right to know how andwhy the Board came to its conclusions, with the statutory rights of the judges concerned to have their privacy respected. Inthe Board‘s view, the competing principles can best be harmonized in the following manner:

Determinations of unsuitability

i.   A judge held to be unsuitable should be given full reasons for the decision, together with access to the record on which it was based.

ii.   The Board should announce to the publicboth the determination of unsuitabilityand the basis on which it wasmade, without revealing details of private information. Thus, to take two examples, there would be no violation of the privacy considerations if the Board showed that it had based its determination on the manner in which the judge had adjudicated in the past, or, alternatively, had consistentlyfailed to produce judgments on time. The provision ofsuch informationcould in fact be welcomed by the judge, since it would make it clear that bribery or other forms of outright corruption had not been involved in the decision on unsuitability.

iii.    It follows therefore that whenever decisions on unsuitability are made, it will be important that the public understands not onlythe determination, but also the grounds on which it has beenbased. Thus judge A may be found unsuitable for having taken a bribe. Though as a human being, he or she is always capable of reform and redemption, as someonewho has subverted  the integrity of the judicial system in such a powerful way, has little future anywhere in the realms of justice. On the other hand, judge B whosuccumbed grossly in unacceptable ways to the  pressures or enticements of bending  the  law  to protect the powerful or the wealthy, might, even off the bench, have beneficial skills and experience to offer. Itwould accordingly be important both for the judge concerned and the general public for the Board to publicize the precise reasons for a findingof unsuitability.

iv.   On the case of a determination of unsuitability, then, the judge concerned must receive full reasons, including those that relate to confidential information. The judge must also have access to the record on which the determination was based. On the other hand, the public can only receive reasons to the extent that they manifest appropriate respect forthe requirement of confidentiality.

Determinations of suitability

Decisions of suitability should also be publicized even ifthe reasons are limited and need not be provided immediately. This will be of special importance to members of the public who have forwarded complaints to the Board. While respecting privacy, the broad motivation for an overall evaluation ofthe judge concerned in favour of suitability, can be indicated without undue delay, on a case by case basis.

VI. JUDGES OF THE COURT OF APPEAL: REASONS AND DETERMINATIONS

57. Bearing in mind the need to restore public confidence in the judiciary, using the processes outlined above, applying the criteria laid down in the Constitutionand the Act, taking account of the requirements of natural justice and the need to look at the suitability or unsuitability of each judge as an individual, the Board has in each case considered and reflected upon all the material before it. It is presently in the process of completing its determinations which will be finalized on 25^th April 2012 and communicated to the judges concerned,and then to the public in full view of the Press and media at 11.am on that day.

58. The vetting Board will then proceed to vet judges who were on the High Court on 27th August, 2010. Two of those judges who are now on the Supreme Court, Hon. Justice Ojwang‘ and Hon. Justice Ibrahim will be interviewed on 26th  and27th  April 2012 respectively. From 2nd ofMay 2012 vetting interviews willtake place with other judges of the High Court, including those recently promoted to the Court of Appeal.

59. The public, members of the legal profession and any other interested persons are invited toforward to the Board any information, whether positive or negative, that might assist the Board in fulfilling its mandate. This information may be lodged directly with the Board or alternatively given to a local branch of the Law Society of Kenya for forwarding to the Board.

60. In conclusion, the Board wishes to re-affirm that in all its activities, including the making of its final determinations, it functions without regard to any political, tribal, ethnic,  regional or religious considerations. We hopeand trust that the public will receive itsdeterminations in that light.

DATED at NAIROBI this 30thday of March 2012

Sharad Rao,Chairperson

Chief Justice Georgina Wood, Member

1.   See the judgment ofthe Constitutional and Human Rights Division of the High Court in Nairobi High Court Petition No. 146 of 2011, Dennis Mogambi Mong‘are –vs- The Attorney General & 3 others, at par. 43. The Petitioner unsuccessfully sought a declaration that Section 23 of the Sixth Schedule to the Constitution together with the Vetting of Judges and Magistrates Act are unconstitutional (Paras 103 to 105. For the text of Section 23 see paragraph 9 below.

4.   The People‘s Choice: The Report of the Constitution of Kenya Review Commission (2002)at 52.

7.    Ibid.  These  statistics  are  also  cited  in  the  International  Commission  of  Jurists  (ICJ)  Report,  Kenya:  Judicial Independence, Corruption and Reform, April 2005 at 15 and International Legal Assistance Consortium (ILAC), ‘Restoring Integrity: An assessment of the needs of the justice system in the Republic of Kenya‘, February 2010 at 31.

8.   International Commission of Jurists (ICJ) Report, Kenya: Judicial Independence, Corruption and Reform, April 2005 at 15 -24; and International Legal Assistance Consortium (ILAC), ‘Restoring Integrity: An assessment of the needs of the justice system in the Republic of Kenya‘, February 2010 at 31. Thesereports overlapped toan extent.

13.   International Legal Assistance Consortium (ILAC), ‘Restoring Integrity: An assessment of the needs of the justice systemin the Republic of Kenya’ at 52.

15.   The Independent Review Commission (IREC) Report (Kriegler Commission Report) stated that “… during the 2007 general election period in Kenya, a material contributor to the tension at Kenyatta International Conference Centre (KICC), broadcast live to the country, was the absence of an effective Electoral Dispute Resolution (EDR) mechanism to resolve the mounting challenges to the integrity of the results from Kibaki strongholds. Theresponse by Electoral Commission of Kenya (ECK) Chairman Kivuitu and Minister of Justice Martha Karua, directing challengers to the courts, merely served to exacerbate matters. ODM representatives, adverting to the appointment of five new judges a few days earlier, made plain their distrust of the judiciary and insisted on their challenges being resolved there and then, if necessary delaying the announcement ofthe final result.” (The commission was headed by Hon. Justice Johann Kriegler).

16.   International Legal Assistance Consortium (ILAC), ‘Restoring Integrity: An assessment of the needs of the justice systemin the Republic of Kenya‘, February 2010 at 52 recordsthat: “Six months after the contested presidential election led  to  widespread post-election violence, a  Gallup Poll  conducted across all  provinces in  Kenya  suggested that confidence in the judicial system had declined from 55% in 2007 to only 36 % in 2008. When the poll was repeated in April 2009, just 27% of Kenyans expressed confidence in the judicial system, half the percentage that had expressed confidence in 2007.” See Steve Crabtree and Bob Tortora,“Lacking  Faith in Judiciary, Kenyans  Lean Toward The Hague” (Gallup, August  5,  2009).  Available  online  at:  http://www.gallup.com/poll/122051/lacking-faith-judiciary-kenyans-lean-toward-hague.aspx.

17.   Under Agenda Item IV (Long Term Issues and Solution Matrix of Implementation Agenda) of the Kenya National Dialogue and Reconciliation (KNDR), comprehensive reform of the Constitution and key governance institutions including the judiciary were identified as part of the long term solutions to the crisis that followed the disputed elections. Similarly, the Medium Term Plans (2008-2012) identified judicial reform as an important aspect of the economic, social and political pillars of vision 2030.

20.   Article 160(1). The Constitution also guarantees the Judges securityof tenure by providing that no office of a Judge shall be abolished while there is a substantial holder, that the remuneration and benefits payable to the Judges shall not bevaried to the disadvantage of that Judge and that a member of the judiciary is not liable in action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function (Article160(2-5)

21.  The Judicial Service Commission is established under Article 171 with the mandate to promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice (Article 172 of the Constitution).

22.  However, appointments to the office of the Chief justice and Deputy Chief Justice by the President must be in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly (Article 166(1)(a) of the constitution).

23.  The Supreme Court is established under Article 163(1)with exclusive original jurisdiction to hear and determine disputes relating to elections to the office of President arising under Article 140 among other powers (see Article 163 (3-9).

24.  Article 10(1-2) of the Constitution declares that the following national values and principles of governance are binding onall state organs (including the judiciary) when applying or interpreting the Constitution.

a)   Patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people,

25.   Article 262 of the Constitution provides that ‘thetransitional and consequentialprovisions set out in the Sixth Schedule shall take effect on the effective date.’which is defined in Article 260 as meaning the date that the Constitution came into force. Article 263 states that the Constitution shall come into force on its promulgation by the President, which happened on 27thAugust 2010.

29.   See section 2 of the Act. Vetting forms part of a wider process of reform of the judiciary, Judicial Service Commission, Supreme Court, High Court and magistrates court with a view to restoring integrity, public trust and confidence in the judiciary.

30. The appointments to the Board were made by the President in consultation with the Prime Minister. Seven days after the commencement of the Act, the President in consultation with the Prime Minister issued a Gazette Notice declaring vacancies in the Board and calling for applications. The applications in respect of the vacancies were then forwarded to thePublic Service Commission (PSC). Seven days after the close of the applications, the PSC convened a selection committee for the purpose of considering the applications, interviewing and selecting at least three candidates qualified for appointment as chairperson and eighteen candidates, of whom at least six are lawyers, qualified for appointment as members. After seven days, the PSC forwarded the names of the selected candidates to the President and Prime Minister for nomination. Within seven days, the President and the Prime Minister nominated the Chairperson and five other members for appointment to the Board. The names of the nominees were then forwarded to the National Assembly for appointment. The National Assembly appointed the members to the Board within fourteen days of receipt of their names. (see Section 7-9 ofthe Act)

31. The three non-citizen members were also appointed by the President in consultation with the Prime Minister and subject to the approval of the National Assembly (Section 9(13). Lord Justice Steven Sedley from United Kingdom and Hon. Justice Louise Otis from Canada, who had been expected to join the Board, had ultimately not been able to do so, and were replaced by Justice Sachs and Justice Chomba.

41.  Section 18(1) provides: The Board shall, in determining the suitability of a judge or magistrate, consider—

(a)   whether the judge or magistrate meets the constitutional criteria for appointment as a judge of the superior courts or as a magistrate;

(c)   anypending or concluded criminal cases before a court of law against the judge or magistrate;

(d)   any recommendations for prosecution of the judge or magistrate by the Attorney-General or the Kenya Anti-Corruption Commission; and

(i) Law Society of Kenya;

(iii)  Advocates Disciplinary Committee; (iv) Advocates Complaints Commission; (v)Attorney-General;

(vii)  Kenya National Human Rights and Equality Commission; (viii)National Intelligence Service;

42. Section 18(2) provides: In considering the matters set out in subsection (1)(a) and (b), the Board shall take into account the following -

(a)  professional competence, the elements of which shall include –

(i)    intellectual capacity;

(vi) organizational and administrative skills;and

(vi) the ability to work well with a variety of people;

(b) written and oral communication skills, the elements of which shall include - (i) the ability to communicate orally and in writing;

(iii) effectiveness in communicating orally in a way that will readily be understood and respected by people from all walks of life;

(i)a demonstrable ability to be impartial to all persons and commitment to equal justice under the law; and

(e)temperament, the elements of which shall include -

(ii) history of courtesy and civility in dealing with others;

(f)good judgment, including common sense, elements of which shall include a sound balance between abstract knowledge and practical reality and in particular, demonstrable ability to make prompt  decisions that resolve difficult problems in a way that makes practical sense within the constraints of any applicable rules or governing principles;

(iii)  broader qualities reflected in life experiences, such as the diversity of personal and educational history, exposure to persons of different ethnic and cultural backgrounds, and demonstrable interests in areas outside the legal field; and

(h) demonstrable commitment to public and community service, the elements of which shall include the extent to which a judge or magistrate has demonstrated a commitment to the community generally and to improving access to the justice system in particular.

43.   Section 19(2).

53.  The Vetting of Judges and Magistrates (Procedure) Regulations, 2011 were published through Legal Notice No 189 of 2011 on the 24thJanuary 2012.

54.  This was done under Section 18(1)(e) of the Act where the Board called for complaints and other relevant information from the public and other bodies. The Notices to the Public were placed on 14thNovember 2011 and 2ndDecember 2011and they required the public to submit any complaints they might have in respect of the various judges on or before 31stJanuary 2012.

55.  This was through a letter dated 2ndDecember 2011.

56.  This was through a letter dated 5thDecember 2011.

57.  For instance, the Chairperson held a press conference with the various media bodies on 16thDecember 2011 to brief both the media and the public on the mandate of the Board, its calendar of activities and other pertinent issues. He stressed that the Board would engage neither in a whitewash nor a witch hunt, but examine each case on its merits in the light of the Constitutional and statutory mandate given to the Board.

58.  The first retreat was held at Naivasha, Simba Lodge and benefited from the wisdom of Justice Louise Otis from Canada and Lord Justice Stephen Sedley from United Kingdom. The second workshop was held at Leisure Lodge, Mombasa from 19thto 21stJanuary 2012 and was enriched by the presence of Madam Justice Sujata Manohar (Rtd) formerly of the Indian Supreme Court.

59.  The public sensitization meetings were held between 25thJanuary 2012 and 4thFebruary 2012. Team A (Mrs. Roseline Odede, Mrs. Meuledi Iseme and Justice Chomba) visited Narok, Eldoret, Kericho, Kisii, Kisumu, Kakamega and Bungoma. Team B (Prof. Ngotho wa Kariuki, Mr. Abdirashid Abdulahi and Justice Sachs) visited Machakos, Nyeri, Embu and Meru. Team C (Justus Munyithya, Sharad Rao and Chief Justice Wood) visited Thika, Malindi, Mombasa, Kwale and Voi. Most of the members also paid a special visit to Mombasa, where they met with members of the public and attended a luncheon organized by the Mombasa branch of the Law Society of Kenya (LSK).

60. In managing the extensive material that was supplied to the Board, the Board was assisted by a team of counsels, namely: David Githanda Wachira, MaryKaren Chesang Sorobit, Joseph G. M‘limbine, Evans Njaramba Gichuki, Jemima W. Keli and Jacqueline Manani, and a teamof researchers, namely: Bakari S. Mohamed, Isaac Mbela, Jacqueliyn Katee, Rarin Lekiyeyo, Edward Chemei, Edelquinn Odhiambo, Irene Kiwool, Sonah Okashaka, Winnie C. Ruto, Ndanu M. Kyalo and Jeptum Bargoria.

61. In form J.M.V.B 2 in terms of Rule 10(2).

67.  Ill-health prevented certain members from attending certain interviews. Although all the documents were available to them and the interviews were fully recorded on Hansard, the Board felt that they should not take part in the deliberations or the determinations. The Deputy Chairperson disclosed that in two matters she had a direct or indirect interest and wished to disqualify herself. The Board acceded to her request.

69. The Board‘s intention was to commence the interviews on 14thFebruary 2012.  This was however not possible as the Court of Appeal issued a temporary order on 30th January 2012 staying the process for a peri od of 21 days. The order was issued following an application for stay of the vetting process pending appeal in the Court of Appeal at Nairobi, Civil Appeal No. NAI 265 of 2011 (UR 175/2001) between Dennis Mogambi Mong‘are –vs- Attorney General and three others, against the decision of the Constitutional and Human Rights Division of the High Court (see note 1 above) On 7thFebruary 2012, the Court of Appeal heard argument on whether the stay should be extended indefinitely pending thehearing of the appeal. On 21stFebruary 2012, the Court decided unanimously that the strong public interest in the matter outweighed the individual interest of the applicant, and refused to extend the stay.

72.   International Centrefor Transitional Justice (ICTJ) and International Commission for Jurists (ICJ), ‘Strategy for Civil Society Support to Kenya‘s Judicial Vetting Process‘ at 4.

74.   See paragraph 24 above read with Section 23(2) of the Sixth Schedule of the Constitution.