Jillo Kadida
30 June 2009
Nairobi — Fixing the rot in the country's court system will require the hiring of better educated and more experienced lawyers as judges, according to a Judiciary reform panel.
For one to qualify fore appointment as a High Court judge, he or she should have 10-year experience as an advocate, unlike now when the requirement is seven years of practice.
This is one of several recommendations in an interim report of the taskforce on judicial reforms presented to Justice, National Cohesion and Constitutional Affairs minister Mutula Kilonzo on Monday.
Experience level
The taskforce also proposes that for one to be appointed Chief Justice or Court of Appeal judge, he or she must have at least 15 years experience in law practice either in Kenya or any other Commonwealth common law jurisdiction.
Also required is the intellectual ability as demonstrated by academic qualifications in law. However, the report does not specify whether the qualification should be a Masters or just Bachelors degree.
Currently, the selection of names of those recommended to be judges has been opaque despite the fact that Section 68(3) of the Constitution empowers the Judicial Service Commission (JSC) to regulate its own procedure, including the power of appointment.
Currently, there is no mention of high morals and integrity as requirements for appointment to the office of a judge even though candidates go through vetting by JSC and National Security Intelligence Service before their names are forwarded to the Head of State.
And for this proposal to be implemented, a few amendments to the law need to be put in place.
Vetting team
Secondly, the taskforce believes that to achieve transparency in the appointment of judges, JSC which is entrusted with the duty of recommending the names of those to be considered, should be expanded.
If this is implemented, JSC membership will increase from the current five to eight people.
The taskforce says that the JSC should comprise the Chief Justice as chairperson, a Court of Appeal judge, a High Court judge, a representative from AG's office and two lawyers of at least 15 years experience nominated by Law Society of Kenya.
Also proposed for inclusion in the membership of JSC is an additional judge to represent the Kenya Judges and Magistrates Association and one person nominated to represent the private sector.
The officers are supposed to hold office for a five-year term and be eligible for re-appointment for a further term.
Currently, the JSC comprises the Chief Justice, two judges, the chairman of Public Service Commission and a representative from the AG's office.Also recommended are additional functions to be undertaken by JSC, among them ensuring judicial independence and accountability.
JSC will also be tasked with the responsibility of developing the criteria for evaluation, monitoring and enhancement of performance of the Judiciary and its staff.
It will also receive and evaluate complaints against judicial staff and also send petition against a judge for his or her removal from office, if need be.
The recommendation for removal of judges from office is currently done by the Chief Justice.
The taskforce, chaired by Mr Justice William Ouko assisted by LSK chairman Okongo Omogeni, delved into problems facing the Judiciary and proposed changes to tackle the issues.
Other members are Mr Justice Isaack Lenaola, lawyers Wilfred Nderitu, Kathurima M'Inoti, Kenya Human Rights Commission chairperson Florence Jaoko, deputy solicitor-general Muthoni Kimani, Mr Gichira Kibara and Ms Grace Maingi Kimani. The secretaries are High Court registrar Lydia Achode, LSK's Apollo Mboya and Mr Mukaindo Steven.
The issue of performance of Judiciary and its staff has been one of the main reforms agenda.
However, opinion has been divided on how this can be achieved.
The taskforce also recommends the Judiciary to embrace the principle of performance management as one of its core values.
To address the thorny issue of integrity, the team proposes the establishment of a permanent complaints mechanism throughout the Judiciary to stem out corruption and the code of conduct be reviewed for comprehensiveness.
"Judiciary has over years been ranked as one of the institutions in which corruption is rampant and in order for the public to have confidence in it, its staff must be beyond reproach. A corrupt Judiciary is inimical to rule of law," says the report. In 2003, the Narc Government sent many judges and magistrates home over unethical behaviour and corruption.
For the institution to be able to attract and retain the best staff, the taskforce proposes upwards review of salaries of magistrates and paralegal staff. It also proposes that the institution be provided with adequate resources to buy utility vehicles for court stations out of Nairobi.
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