Khaminwa Wrong On The Vetting Of Judges

John Khaminwa says that the vetting of judges is flawed. He argues that the judges are being made sacrificial lambs for sins of Kenyatta and Moi. This is nonsense. The constitution seeks to establish a new political and legal order in which people are held responsible for their acts—regardless of their status. The constitution also requires redress of past injustice that must imply some sort of punishment for the wrong doers; land must be retrieved from those who have grabbed it; truth and transitional processes have been launched; and to some extent people through their power of the vote have the opportunity to remove corrupt parliamentarians and ministers. But judges have tenure and cannot be easily removed.

Contrary to what Khaminwa says, judges are not being not been held responsible for corruption and authoritarianism of the presidents, but for their own weaknesses and failings. In many cases their judgments protected the wicked and the crooked. The mess we are in started with Kenyatta but is also the result of the decline in respect for rule of law for which the judiciary must be held at least partially accountable.

Khaminwa’s priorities are dubious—increase in backlog seems to him more serious than that corrupt or incompetent judges continue to promote corruption and administer injustices. For clearing of the backlog we need to think more imaginatively—my own suggestion would be the appointment of judges from overseas who would serve for a few years to clear the backlog.

He says that many judges are working in fear because of the vetting. Pray why? The Vetting Board has shown great regard for due process, meticulous attention to detail, and accountability to the public—and, we may add, given the benefit of the doubt to the judge. In any case fear of vetting can hardly be the reason for abolishing it; on the contrary it is a reason to proceed with deliberate speed. Judges who are honest and competent have nothing to fear.

His logic that vetting will lead to a “weak and skewed judiciary” is extraordinary (“skewed in favour of the bright and the honest”—what is wrong with that?). Yes, it is true that we will lose experienced judges—but experienced in what?

Khaminwa’s comments are extremely strange, coming from a lawyer who has often fought valiantly for justice before judges—justice mostly denied because judges were insensitive to human rights or feared the wrath of the executive.

Let me set my reasons why proper vetting and public accountability of the process are important:

The new constitution provides for a central role for courts in the implementation of the constitution, particularly its values. If judges are not committed to these values (as some judges are not), the values will be disregarded in the scales of justice, and nothing will change in public life and morality. Honest judges are central to justice. The drafters of the constitution realised that that the executive and the legislature would have a vested interest in undermining constitutional reforms (a fear that has proved well justified). They therefore decided that the independence of the judiciary had to be strengthened and the quality of judges enhanced—and courts given the ultimate responsibility for the protection of the constitution, placing them in this respect above the legislature and the executive. These responsibilities can only be fulfilled if the judges are both competent and honest—and courageous.

The vetting must be done now—indeed it should have commenced immediately after promulgation—because it is well known that the formative years of the interpretation and development of a constitution are its early years, our law being a precedent based system. Unless the courts now develop a jurisprudence sensitive to and reflect of the objectives of the constitution, we shall suffer the same fate as our old constitution did at the hands of the judiciary (many still sitting in our superior courts).

The CKRC received numerous statements from organisations and individuals about corruption in the judiciary; how business people found it hard to plan because there was no sanctity of contracts—merely the justice of the highest bidder. A group of eminent Commonwealth judges appointed to advise the CKRC reported that they had never come across a judiciary so corrupt and incompetent—and recommended the vetting process. Yet we knew that there were (and are) many judges and magistrates who perform their duties conscientiously. CJ Chunga held the judiciary under such a tight leash that no judge was allowed to talk to the CKRC. Some brave and honest judges did see us (in secrecy) and told us about the state of the judiciary and made proposals for reform. We felt for these judges. It seemed to us a vetting process would establish their innocence and acknowledge their competence, so they and we Kenyans could feel proud of them.

Vetting is a symbol, a symbol of the commitment of millions of Kenya to honesty, integrity and justice. It is a symbol of the new era that the constitution has ushered in. Were we to follow Khaminwa’s prescriptions, nothing would change and there would be nothing to show for the efforts of Kenyans and the expenditure of billions of shillings to secure a new constitution. Surely Khaminwa does not want the country to remain mired in darkness, poverty, and fear of the state—and impunity for the rich and the powerful?

Yash Pal Ghai is a director with Katiba Institute.