Last Friday's Star quoted Chief Justice Evan Gicheru as saying the proposals in the draft constitution (presumably he means CoE's harmonised draft) that all high court and appeal court judges be "sacked" as "nonsense and impossible".
Since the draft says nothing of the kind, one is left to conclude that either the CJ has been misreported, or has not read the text, cannot understand the text, or that he wishes Kenyans to misunderstand what the text says.
The draft is based on generally accepted principles of judicial independence, competence and integrity. It poses no threat to the proper functioning of the judiciary.
The provisions the CJ mentions are transitional, dealing only with current judges. They are designed to get rid of corrupt judges so that the entire judiciary meets the tests of the draft. The proposed procedure meets the highest standards of due process. No judge is "sacked" and has to apply to be reappointed.
Every judge, including the CJ, may retire with full retirement benefits within 60 days of the coming into effect of the constitution. Those who choose to stay will not be sacked but will be vetted by an independent Interim Judicial Service Commission consisting of four retired judges, two from the Commonwealth (one as chair) and two local, and an experienced lawyer or distinguished academic nominated by the Law Society.
The IJSC will not necessarily proceed against all the judges. When it does proceed against a judge, it must respect international principles and standards on judicial independence.
The IJSC would proceed against a judge only after evaluating evidence about the judge's suitability gleaned from a number of prescribed, respectable sources (including pending or concluded criminal cases, any recommendation to prosecute a judge by the AG, KACC or other appropriate authority).
If it does proceed, the judge would go on leave, with full pay, pending trial. A judge would be dismissed only if after appropriate hearings, the IJSC found the judge unsuitable to hold judicial office.
The IJSC will not investigate or try all judges simultaneously, but by seniority. The entire review must be concluded within one year of the new constitution, unless the National Assembly extends the time.
One year is unrealistic, although perhaps sufficient to make preliminary decisions on all the judges. There should also be an obligation to inform judges who would not be charged (to remove their anxiety) — this would have to be confidential, otherwise suspicion would mean that all the other judges would be unable to continue to work.
The CJ is wrong on other points as well. He says that it is "imaginary and poor excuse to paint all judges as corrupt in order to achieve political gains". First, no one has labelled all judges corrupt. Indeed the procedure has been designed to sift the uncorrupt from the corrupt. Secondly, the only political objective I know for this proposal is to enable Kenyans to have an honest and competent judiciary.
He is also wrong when he says that the judiciary can and has set its own house in order. Really? By a CJ in whom the Law Society, some major political parties, and a large section of the public have lost confidence?
There is widespread feeling that the earlier process of vetting in 2003, presided over by the CJ, was deeply flawed. Since then a number of judges have been appointed, under his watch as chair of the Judicial Service Commission, who seem unsuitable (one is now charged with offences related to corruption in his immediate past post).
Improper procedure for some judicial appointments was the reason the former Minister of Justice gave for her resignation. It was partly the perception of lack of integrity on the part of the CJ that plunged the country into unparalleled crisis because people believed this judiciary was inappro-priate to decide on disputed elections.
He implies that only a small number of people believe that there are corrupt judges. The Constitution of Kenya Review Commission received a large number of complaints about wide scale corruption in the judiciary, from extraordinarily diverse groups, including the Law Society, professional bodies, and business organisations.
A panel of eminent Commonwealth judges and jurists in 2001 reported having received allegations "both persistent and consistent" against the judiciary "from highly credible (and diverse) sources", and concluded that "public confidence in the Judiciary has virtually collapsed". The 2003 process was simply not suited, perhaps not intended, to remedy this.
There is indeed a procedure in the current constitution for removal of judges. As the eminent jurists noted, allegations of judicial misconduct have not been taken seriously by those with the constitutional duty to act (and that continues to be case). The scheme in the draft follows the essential principles of this procedure. The proposals are not a denial, but a recognition, of the crucial position of the judiciary in implementing a constitution — and ensuring the rule of law.
Ghai was the chairman of the former Constitution of Kenya Review Commission.
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