1.1 Introduction and Background
In pursuit to make my contribution to my beloved country - Kenya, I contemplated at one point, offering myself for the position of the Chairperson of the Commission for Implementation of Constitution (CIC) and my intention was to push for redefinition of the country’s governance and operational structures for effective service delivery in the Judiciary, the Executive and the Legislature. I shared my thoughts with my brother Kathurima M’Inoti – Chairman, Kenya Law Reform Commission and his advice to me was that, I should avoid suggestions to changes in the constitution at the early stages as this would be counterproductive to my course. It was also pointed out to me that the Chair of CIC needed to be someone who can be a Judge of the High Court (Trust Lawyers to create jobs for themselves while cutting off other Kenyans). I shelved my plans but this did not stop me from pursuing my course.
1.2 Principles and Work Ethics attached to the Governance and Operational Structure
In this write up, I share my thoughts on governance and operational structures needed by the Judiciary for effective Judicial Services provision. My thoughts come from the premise that, the agenda for running a country must be centered on the principles of: Inclusivity, Teamwork, Empowerment, Good Governance, Personal Integrity and Innovation. Teamwork would allow managers appointed to run government affairs to make an impact on Kenyans' lives that is far beyond the sum of each individual talent. Each public officer appointed will be required to concentrate on being a public servant for the whole country and not for his tribe with full responsibility to act and be held accountable.
My thoughts have been informed by comprehensive studies I conducted to understand what Kenyans want as a people and finding out that they want Kenya to be a “Just, Equitable and Prosperous Society”. This is their DESIRE as a people.
It has also been informed by the outcome of the review of the heat generated by the Judiciary after a member of the Judicial Service Commission – Ahmednasir Abdulahi was taken to court by lawyer Philip Murgor citing conflict of interest, the suspension of the Deputy Chief Justice – Nancy Barasa, the recent removal from office of four (4) judges one of whom was a senior member of the Judicial Service Commission and the most recent allegation that Ahmednasir Abdulahi forged a signature to be admitted to the bar, which only served to convince me that, properly defined and understood governance and operational structures are needed to ensure that Kenya becomes a Just Nation.
1.3 The Erosion of Independence of the Judiciary
I begin my discussions and proposals here, by focusing on Articles 106, 166, 168, 171 and 172 (1) (b), (c) and (e) and the Sixth Schedule of the Constitution, which clearly lend credence to the erosion of the independence of the Judiciary and shows that more thoughts need to be given to the composition, functions, operational and governance structure of the Judiciary so as to ensure that Kenya becomes a “Just Nation” as espoused in our National Anthem which indeed is a our prayer. While Article 106 of the Constitution stipulates that the Speaker of the National Assembly shall be elected by members of parliament in accordance with the Standing Orders of Parliament, Article 166 (1), requires the Chief Justice and Deputy Chief Justice to be appointed by the President (a person who is in fact the head of another arm of government – the Executive) with recommendations of the Judicial Service Commission and with approval of the National Assembly - that is after the next elections when the National Accord will not be in existence since Sub-article 29 (2) of the sixth schedule requires that new appointments be made by the President subject to the National Accord and Reconciliation Act after consultation with the Prime Minister and with approval of the National Assembly and all other judges would be recommended by the Judicial Service Commission to the President for appointment.
Articles 171 (1) and (2) of the constitution establishes and outlines the composition of the Judicial Service Commission with the Chair being the Chief Justice and members being: one each of Supreme Court and Court of Appeal judges, one High Court judge and one magistrate, being of either gender all elected by their own, the Attorney-General, two advocates of either gender, a person nominated by the Public Service Commission, a woman and a man both not being lawyers to represent the public and finally the Chief Registrar of the Judiciary is the Secretary to the Commission.
Article 172 (c) allows the Judicial Service Commission to: “appoint receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary in the manner prescribed by an Act of Parliament”.
Article 168 (2), (3) and (4) outline the conditions under which a petition against a judge can be made and must be in writing to the Judicial Service Commission if made by “any person” other than the Commission itself while Article 168 (4) and (5) stipulate that the Judicial Service Commission would send petitions considered to have merit for removal from office of a judge, to the President from whence, the President shall within fourteen days after receiving the petition, suspend the accused judge from office.
Article 168 (5) (a) stipulates that, if the accused Judge is the Chief Justice, the President is expected to appoint a tribunal headed by the Speaker of the National Assembly (a person heading a different arm of government-the Parliament and who will definitely have no time to Chair such a tribunal as his hands would already be full with his duties as the Speaker of the National Assembly). The tribunal would comprise three superior court judges of commonwealth jurisdiction, one advocate of fifteen years standing (this is very vague since one cannot have exactly fifteen years, in other words, does a person with more than fifteen years qualify to be in the tribunal?) and two other persons with experience in Public Affairs (this allows people like Jean Bokasa and Iddi Amin to fill the two slots).
Similar misaligned issues mentioned above are apparent in Article 168 (5) (b) of the constitution which describe how the tribunal to handle complaints against judges other than the Chief Justice would be set.
From the foregoing, it is clear that the President, the Speaker and institution of the National Assembly are overused in the management of the affairs of the Judiciary and clearly does not lend itself to true rules of separation of powers. It is also not clear how judicial officers are supposed to behave when hearing cases where a member of the Judicial Service Commission is appearing before them when the same advocate would receive complaints against the same judicial officer in case of complaints.
1.4 Proposed Proper Governance Structure
In order therefore, to have a meaningful governance and operational structure and true separation of powers between the Judiciary on the one hand and the Executive, and the Legislature on the other, It is my proposal that, the Law Society of Kenya (LSK), being the umbrella professional body of the legal fraternity, takes a leading role in the restructuring and management of the Judiciary.
I propose here as follows:
(a) That, Article 171 (2) of the Constitution be amended to have the composition of the Judicial Service Commission as depicted in the diagram above as follows: “The Judicial Service Commission Shall consist of: (i) A Commissioner General
(ii) Chief Commissioners in charge of Finance and Administration assisted by (i) Commissioner in charge of Finance who is assisted by two (2) Deputy Commissioners and(ii) Commissioner in charge of Administration assisted by two (2) Deputy Commissioners
(iii) Chief Commissioners in charge of Welfare and Benefits and Promotions assisted by (i) Commissioner in charge of Development and Promotions who is assisted by two (4) Deputy Commissioners and (ii) Commissioner in charge of Welfare and Benefits assisted by four (4) Deputy Commissioners
(iv) Chief Commissioners in charge of Complaints and Discipline assisted by(i) Commissioner in charge of Complaints is assisted by four (4) Deputy Commissioners and (ii) Commissioner in charge of Discipline assisted by four (4) Deputy Commissioners
(v) An appropriate number of support staff
(b) That Article 172 (a) of the Constitution outlining the functions of the judiciary be changed to give interviewing, vetting and appointment powers to the Judicial Service Commission and should read: “interview vet and appoint persons to the position of judges”.
(c) Article 172 (e) also be changed to read “draft, in consultation with relevant bodies such as the Kenya Law Reform Commission, Bills that will help in improving the efficiency and effectiveness of the administration of justice, for enactment in Parliament and implement the relevant Acts of Parliament in respect to administration of Justice in Kenya”.
The 2 Chief Commissioners, 4 Commissioners and 20 Commissioners in charge of the Welfare, Benefits, Promotion, Complaints and Discipline should as a mater of necessity be advocates of the High Court but be given trainings in relevant areas of administration or management of human capital. The remaining commissioners can be people with relevant training in Finance, Administration or Management.
In this proposed structure, there would be twenty four (24) Deputy Commissioners assisting the six (6) Commissioners who are assisting three (3) Senior Commissioners working under one Chief Commissioner with an appropriate number of support staff to assist the Commission work effectively as depicted in fig 1.1 below.
Fig 1.1 – Proposed Judicial Service Commission
1.5 The Stature, Remuneration and Benefits of the Commissioners
On stature, remunerations, powers, compensation and benefits, I propose that the Commissioner General’s should be pegged to that of Supreme Court Judges, those of Chief Commissioners to Court of Appeal judges while those of Commissioners and Deputy Commissioners at the level of High Court Judges.
I further propose that the Commissioners’ term be fixed to ten year limit before automatic retirement from whence they would not be allowed to serve in any capacity within the Judiciary save for being private practicing professionals.
In addition, members of the Judicial Service Commission should also not be allowed to practice as advocate during their tenancy in the Commission. This arrangement would ensure that there is no conflict of interest in reviewing salaries and benefits for the Judicial Officers by the Commissioners believing that they would benefit from the same while at the same time, have independence to do their work effectively with commensurate compensation and benefits.
1.6 Implementation and Self Respecting and Self Sustaining New Judiciary
In terms of implementation of a Self Respecting and Self Sustaining New Judiciary, the following is proposed:
(a) The Judicial Service Commission after being duly constituted as proposed above, should accept through the Law Society of Kenya, applications from a pool of honest effective and dedicated lawyers, willing to serve as magistrates and from this pool, potential magistrates can be further subjected to vetting by the Judicial Service Commission before appointment as magistrates.
(b) Judges should be vetted by Judicial Service Commission from amongst sitting magistrates or practicing lawyers with relevant qualifications on application to fill vacancies or from the pool of potential judges whose applications shall have been accepted by the Commission and further be vetted for appointments as Judges. (c) The Chief Justice and Deputy Chief Justice should be elected by and from amongst all the vetted and sitting judges since he/she would just be, first among equals of the judges.
1.7 Conclusion
In conclusion, I wish to state that this proposal has benefited form six years of observation and lends credence from strategic thinking doctrine that having knowledge of what our problems are and with a vision of where we want to go as a people, we can craft a strategy and roadmap to assist us get there. It is therefore my honest view that this arrangement will ensure that the Judiciary becomes truly independent, will comprise of respected, honest and dedicated people, with allegiance only to their profession and service to serve the country and make it a Just Nation.
The Law Society of Kenya should therefore constitute a team of vetted people from amongst themselves and include professionals from other fields of management, who are of good standing in the society, are honest, effective and dedicated and with sufficient number of years of experience and willing to serve to be appointed as Commissioners in the Judicial Service Commission to start this work of making Kenya a Just and Equitable Society.
Osano Kute is a Strategy and Leadership Advisor based in Nairobi, kute@osanoassociates.com
