(Photo Courtesy The Daily Nation)

Nairobi — The judiciary is uncomfortable about proposals in the draft constitution that will effectively suspend all High Court and Court of Appeal judges and re-admit only those cleared of corruption.

A committee of judges has been appointed to study the proposals on the judiciary and make a presentation to the Committee of Experts during the 30 days provided for debate and recommendations.

The judges are particularly concerned about what seems like a second round of the "radical surgery" carried out by the first Kibaki administration -- only that this time there will be no pretence at any investigation; only the declaration that all judges are guilty unless they prove themselves innocent.

Concerned judges who talked extensively to the Nation but cannot be named because of the sensitivity of their positions, wondered why the proposals will victimise one arm of the government, yet spare members of the executive and the legislature who will serve out their terms when the new constitution takes effect.

The judges also wondered where the push to sack them with the harmonised draft came from as there were no such proposals in the main working documents, the Bomas and Wako drafts.

The proposals had been in the original draft by Constitution of Kenya Review Commission, but were dropped after public hearings because they were found discriminatory and arbitrary.

The fear is that the experts adopted wholesale proposals by NGOs to send the entire judiciary home without considering the full ramifications.

Further, the judges are also concerned that the committee did not pay attention to what they say is the best blueprint for judicial reform -- the report of the task force chaired by Mr Justice William Ouko.

According to them, the report focuses on reforming the institution rather than merely replacing judges.

The Ouko Task Force report was published in August but was immediately dismissed by the ODM wing of government because it "did not go far enough".

Some key ODM figures said at the time that there can be no judicial reform without first the removal of Chief Justice Evan Gicheru, whom they claimed was both ineffective.

Terrible image

Some judges described Justice Gicheru as weak and ineffective.

They concede that the judiciary suffers a terrible public image and that some judges are lazy and corrupt; but still caution against indiscriminate targeting of an entire institution in what could be a form of collective punishment.

Another worry is that no there are no clear guidelines on how the judges to be retained will be vetted, leaving the way open for an indiscriminate purge that could be driven by forces with an axe to grind.

The judges are also worried about the proposal to leave the Chief Justice out of the new Judicial Service Commission.

They say that the judiciary cannot function properly if its head is excluded from the institution that manages it, seeing in it another proposal directed against the Chief Justice.

According to the judges, judicial reform will not be addressed merely by replacing one set of faces for another, but one that focuses on the institution.

They point out, for instance, that the Ouko Task Force report contained elaborate provisions for disciplining judges and monitoring their performance.

Currently, lazy and incompetent judges can get away with almost anything because there is no mechanism for punishing them other than forming a tribunal to try them.

Many of the problems with the Judiciary are related to lack of resources, they say, adding that it is under-funded and under-staffed. Kenya, with a population of nearly 40 million, has fewer than 70 judges, compared to Ghana with 83 judges for a population of 22 million.

Canada has a population about the same as Kenya, served by 2,000 judges. The judges there sit for two and a half days, with the rest of the week for writing judgements.

In Kenya judges sit the full five days, leaving them only evenings and weekends to write judgements.