The Vetting of Judges and Magistrates Bill, 2010

THE VETTING OF JUDGES AND MAGISTRATES BILL, 2010

ARRANGEMENT OF SECTIONS

Section

PART I — PRELIMINARY

1— Short title and Commencement

2— Interpretation

3— Purpose of vetting

4— Application

5— Guiding principles

PART II - ESTABLISHMENT, COMPOSITION, FUNCTIONS AND POWERS

OF THE BOARD

6— Establishment of the Board

7— Composition

8— Mandate of the Board

9— Powers of the Board

10 — Joint Secretaries and Secretariat

11 — Staff

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 The Vetting of Judges and Magistrates Bill, 2010

PART III - VETTING PROCEDURES

12 — Panels

13 — Relevant considerations

14 — Procedure

15 — Order of priority

16— Preliminary Findings

17 — Final Determination

18 — Review

PART IV - GENERAL

19 — Timeframe

20 — Voluntary retirement and Special package

21— Funds, Expenses and Allowances

22 — Protection from personal liability

23 — Oath of office

24 — Disclosure of personal interest

25 — Conflict of interest

26 — Inherent powers of the Board

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 The Vetting of Judges and Magistrates Bill, 2010

VETTING OF JUDGES AND MAGISTRATES BILL, 2010

A Bill for
AN ACT of parliament to provide for the vetting of judges and magistrates as envisaged under
Clause 23 of the Sixth schedule of the Constitution and for related matters.

ENACTED by the Parliament of Kenya as follows—

PART I -PRELIMINARY
Short Title and 1. This Act may be cited as the Vetting of Judges and Magistrates Act
Commencement
2010, and shall come into operation on such date as the Minister
may by notice in the Gazette appoint.

Interpretation 2. In this Act, unless the context otherwise requires—

“Board” means the Board established under section 6 of this Act;

“Chairperson” means the chairperson of the Board appointed under

section 7 of this Act and includes the deputy chairperson;

“Effective date” means the date on which the New Constitution

comes into force;

“Joint Secretary” means the Joint Secretary of the Board appointed

under section 10 of this Act;

“Member” means a member of the Board appointed under section 7

of this Act and includes the chairperson and deputy chairperson;

“Minister” means the Minister for the time being responsible to

Parliament for matters pertaining to the Judiciary;

“Board” means the Board established under section 6 of this Act;

“Special package” means benefits accruing to a Judge or a

Magistrate including compensation for early retirement as
calculated under section 20 of this Act;

“Vetting” means the process by which the suitability of a serving

Judge or Magistrate to continue serving in the judiciary;
Purpose of vetting 3. The purpose of vetting is to determine the suitability of all Judges
and Magistrates who were in office on the effective date to

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continue to serve in the judiciary.

Application 4. [1]The provisions of this Act shall apply only to persons who are
serving as Judges and Magistrates on or before the effective date.

[2]For the avoidance of doubt, the provisions of subsection [1] shall

also apply to persons holding the offices of the Registrar of the
High Court and Chief Court Administrator and their deputies in
their capacities as Magistrates.
Guiding Principles 5. In executing its mandate, the Board shall at all times be guided by
the principles and standards of judicial independence and
international best practice.

PART II - ESTABLISHMENT, COMPOSITION, FUNCTIONS AND POWERS OF THE

BOARD

Establishment of the 6. There is established an independent Board to be known as the

Board
Vetting of Judges and Magistrates Board.

Composition 7. [1]The Board shall consist of a chairperson, deputy chairperson and

seven [7] other members.

[2]The President shall in consultation with the Prime Minister

nominate three [3] distinguished non-citizen serving or retired
judges each of whom has served in a Commonwealth country as a
superior Court Judge or as a Chief Justice to be members of the
Board.

[3]The remaining members of the Board shall be identified and

recommended for appointment in the manner prescribed and by the
bodies and institutions contained in the Schedule.

[4]Persons identified and recommended for appointment under

subsection [1] shall be approved by the National Assembly and
appointed by the President in consultation with the Prime Minister.

[5] A person shall not be qualified for appointment as the

chairperson or deputy chairperson unless they have at least twenty
[20] years or an aggregate of twenty [20] years experience as a
superior court Judge, distinguished academic, judicial officer or
other relevant legal practice in the public, private or any other
sector in Kenya.

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 The Vetting of Judges and Magistrates Bill, 2010

[6]The Chairperson shall be nominated by the President in

consultation with the Prime Minister and deputy chairperson shall
be elected by the members on the first sitting after appointment.

[7] A person is qualified for appointment as a member if such

person—
[a]has a degree from a recognized university;
[b]has at least fifteen [15] years post-qualification
experience in their field of study; and
[c]is a person of high moral character and proven integrity.

[7]No person shall be qualified for appointment as a member if

such person—
[a]is a member of Parliament;
[b]is a member of a local authority;
[c]is a member of the executive organ of a political party;
or
[d]was serving as a Judge or Magistrate on the effective
date.

Mandate of the Board 8. The function of the Board shall to be to inquire into and determine
the suitability of serving Judges and Magistrates to continue
serving in the judiciary.

Powers of the 9. [1]Subject to section 13, the Board shall have all powers generally
Board necessary for the execution of its functions under the Constitution
and this Act , and without prejudice to the generality of the
foregoing–

[a]to gather, any information it considers relevant,

including requisition of reports, records, documents or any
information from any source, including governmental
authorities, and to compel the production of such
information as and when necessary;

[b]to interview any individual, group or members of

organizations or institutions and, at the Board’s discretion,
to conduct such interviews; and

[c]to hold inquiries for the purposes of performing its

functions under this Act.

[2]In the performance of its function, the Board-

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 The Vetting of Judges and Magistrates Bill, 2010

[a]may inform itself in such manner as it thinks fit;

[b]may receive on oath written or oral statements;

[c]is not bound by strict rules of evidence; and

[d]shall not be subject to the direction or control of any

person or authority.
Joint Secretaries and 10. [1] There shall be a secretariat of the Board which shall be headed
Secretariat.
by two Joint Secretaries, one a woman and one a man
competitively recruited by the Board.

[2] No person shall be qualified to be appointed as a Joint Secretary

unless such person has—

[a] at least a degree in law;

[b]at least ten years post-qualification experience; and

[c]was not serving as a Judge or Magistrate on the effective

date.

[3] The Joint Secretaries shall be the chief executives and

administrators of secretariat and shall serve on a full-time basis.

[4]The Joint Secretaries shall among others be responsible to the

chairperson for-

[a] the day to day administration of the affairs of the Board;

[b] the coordination of the Board’s studies, reviews,

research and evaluations;

[c] the recording of the Board’s proceedings;

[d] providing the Board with accurate information on the

status of facilities and services required for the proper
conduct of the vetting process;

[e] securing the maintenance and provision of facilities and

services required for the discharge of the Board’s
functions;

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[f] providing the Board with accurate records and

information regarding the Judges and Magistrates
undergoing vetting;

[g] maintaining accurate records on financial matters and

resource use;

[h] ensuring the drawing up and approval of the required

budget;

[i] the custody of all records and documents of the Board;

and

[j]performing any other duties as may be assigned by the

Board from time to time.

[5] Subject to the provisions of the Constitution or any other

written law, the Board may delegate such of its functions as are
necessary for the day-to-day management of its processes.
Staff. 11. [1] The staff of the Board shall comprise –
[a] such number of staff as the Board may appoint to assist
it in the discharge of its functions under the Constitution
and this Act; and
[b]such public officers as may upon the request of the
Board be seconded to the Board.
[2] A public officer who is seconded to the Board under subsection
[1], shall, during the secondment, be deemed to be an officer of the
Board and subject to its direction and control.

PART III-VETTING PROCEDURES

Panels 12. [1]To ensure expeditious disposal of the matters, the chairperson
may constitute three Panels each composed of three members to
work concurrently.

[2]The chairperson shall ensure that each panel referred to under

subsection [1] consists of at least a serving or retired judge, a
lawyer and a non-lawyer.
Relevant Considerations 13. The Board shall consider-
[a]whether a serving Judge or Magistrate would have met
the constitutional suitability thresholds for appointment as a
Judge of the Superior Courts or as a Magistrate.

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[b]any pending or concluded criminal cases before a court

of law against the concerned Judge or Magistrate;

[c]any recommendations for prosecution by the Attorney-

General or Kenya Anti-Corruption Commission;

[d]the track record of the concerned Judge or Magistrate

including prior judicial pronouncements, competence and
diligence; or

[e]pending complaints from any person or body including

but not limited to Law Society of Kenya, Kenya Anti-
Corruption Commission, Disciplinary Committee,
Advocates Complaints Commission, the Attorney General,
Public Complaints Standing Committee, Kenya National
Commission on Human Rights, National Security
Intelligence Service, the Police and the Judicial Service
Commission.

Procedure 14. [1]The Board shall consider information gathered in the course of
personal interviews with the affected Judges and Magistrates as
well as their records.

[2]All information obtained by the Board during personal

interviews and records of the Judge or Magistrate being vetted shall
be confidential.

[3]Every Judge or Magistrate to be vetted shall be given sufficient

notice.

[4]The hearing by the Board may not be conducted in public,

unless the concerned Judge or magistrate requests a public hearing.

[5]The rules of natural justice shall apply with reference to the

Boards proceedings.

[6]A Judge or Magistrate who submits to vetting shall be entitled at

their own cost, to legal representation.

Order of priority 15. The first serving judicial officers to be vetted shall be the Court of
Appeal Judges, followed by Judges of the High Court, the Registrar
of the High Court, the Chief Court Administrator, Chief
Magistrates and others in that order.

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Preliminary Findings 16. Upon finding on the face of record that a serving Judge or
Magistrate should be removed, they shall be required to
immediately proceed on leave.

Final determination 17. [1]The Board shall inform the concerned Judge or Magistrate in
writing of the final determination including reasons for the
determination.

[2] Once informed of the decision under subsection [1] the Judge or
Magistrate shall, subject to section 18 be deemed removed.

[3]The decision to remove a Judge or Magistrate from service shall

be made public.
Review 18. [1] A Judge or Magistrate, who has undergone the vetting process
and is dissatisfied with the determination of the Board, may apply
for review by a panel of five members within ten [10] days of the
date of determination.

[2]The review panel shall consist of the chairperson, deputy

chairperson and three other members who did not sit in the panel
whose decision is the subject of review.

[3]The decision by the panel constituted under subsection [2] shall

be final.
PART IV- GENERAL
Time Frame 19. [1]The vetting process once commenced shall not exceed a period
of one year but Parliament may extend this period by a further one
year.

[2]The Board shall stand dissolved within thirty days of the

execution of its mandate.

[3]During the period prescribed in subsections [2], the Board shall

ensure that its affairs are wound up in an orderly manner and, in
particular, shall ensure that―

[a]those aspects of its work that will be of value to other

institutions are preserved, documented and transferred; and

[b] its files and records are preserved and transferred to the
Kenya National Archives and Documentation Service.

[4]Upon the dissolution of the Board under subsections [2] and any
assets and liabilities of the Board, shall become assets and
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liabilities of the Government.

[5]The terms of chairperson, deputy chairperson and members

shall expire upon the dissolution of the Board.
Voluntary retirement 20. [1] A serving Judge or Magistrate shall elect within three [3]
special package
months of the commencement of this Act-
[a]whether to be subjected to the vetting process; or
[b]to leave judicial service voluntarily.

[2]A Judge or Magistrate who elects to leave judicial service

voluntarily shall be entitled to a special package comprised of
terminal benefits and compensation for early retirement calculated
on the basis of the number of years served.

[3] A judge or a Magistrate who is found unsuitable after vetting

shall be entitled to terminal benefits as at the date of the finding.
Funds, expenses and 21. [1] The expenses incurred by the Board in accordance with this Act
allowances.
shall be charged on and issued out of the Consolidated Fund
without further appropriation than this Act.

[2]Without prejudice to subsection [1], there may be made to the

Board grants, gifts, donations or bequests towards the achievement
of the objects of the vetting process specified in section 3.

[3]The Board shall not accept any grant, gift, donation or bequest
made on any condition that the Board performs any function or
discharge any duty or obligation other than duties under this Act.

[4]The Board shall pay the members of the Board such allowances
and expenses as are determined by the Minister in charge of finance
in consultation with a committee of the National Assembly
designated by the National Assembly for that purpose.
Protection from personal 22. [1] No action or proceeding for compensation or damages shall be
liability.
brought against a member of the Board or any other person
authorized by the Board, in respect of anything done or omitted in
good faith under this Act.

[2] This paragraph shall not relieve the Board of any liability.
Oath of office 23. The Chairperson, the members and the Joint Secretaries shall each
make and subscribe before the Chief Justice the oath or affirmation
as prescribed in the Second Schedule.

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Disclosure of personal 24. [1]A member of the Board who has a direct or indirect personal
interest.
interest in a matter being considered or to be considered by the
Board shall, as soon as reasonably practicable after the relevant
facts concerning the matter have come to their knowledge, disclose
the nature of the interest to the Board.

[2] A disclosure of interest in a matter shall be recorded in the minutes

of the meeting of the Board and the member shall not be present while
that matter is being dealt with by the Board and shall not take part in
any deliberations or vote relating to the matter.

Conflict of interest 25. [1]A person who serves on the Board as chairperson, deputy
chairperson, member or Joint Secretary shall be precluded from
being appointed as a judge or judicial officer for a period of five
years from the close of the vetting process.

[2]For the avoidance of doubt, the provisions of subsection [1] shall

apply to any person who served as a member of the Committee of
Experts appointed under the Constitution of Kenya Review Act,
2008.
Inherent power of the 26. [1]Subject to the provisions of this Act, the Board may regulate its
Board
own procedure and make regulations generally for the better
carrying into effect the provisions of this Act.

[2]The chairperson may issue directions for the just, efficient and
economical determination of proceedings in relation to the
procedures provided for by the rules made under subsection [1]

[3]Nothing in this Act shall limit or otherwise affect the inherent

power of the Board conferred by Constitution or under this Act
either on its own motion or on the application of a party to make
such orders as may be necessary for the ends of justice or to
prevent abuse of the process of the Board.

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SCHEDULE

PROVISIONS RELATING TO MEMBERS OF THE BOARD

1. Appointment of nominated members

[1] This paragraph provides for the appointment of a member of the Board nominated the under
section 7 [2] and [3].

[2]The nominating body other those nominated under section 7[2] shall submit the name of its
proposed member to the Minister.

[3] The Minister shall within seven [7] days after receiving them, submit the names of the
proposed members to the President who shall in consultation with the Prime Minister consider
the persons proposed and nominate the Chairperson and eight [8] members within ten [10] days.

[3]The President shall submit the names of the nominees proposed under section 7[2] and [3] to
the National Assembly for approval.

[4]The National Assembly shall, within fourteen days after it first meets after receiving the
names of the nominees -
[a]consider the nominees and either approve or reject them; and
[b]notify the President as to its approval or rejection under subparagraph [a].

[5]If the National Assembly approves a nominee, the President shall, within seven days after
receiving the notification of the National Assembly, appoint the nominee in consultation with the
Prime Minister as a member of the Board.

[6] If the National Assembly rejects a nominee submitted by the nominating body, the President
shall, within seven days after receiving the notification of the National Assembly, request the
nominating body to submit a new nominee to the Minister and subparagraphs [3], [4], and [5]
and this subparagraph apply with necessary modifications with respect to that new nominee.

[7] In nominating and approving persons to be members of the Board, the nominating body and
the National Assembly shall have regard to –

[a] the qualifications of members set out under this Act;

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[b]honesty and integrity of the person; and

[c] the importance of representing Kenya's ethnic and regional diversity on the Board.

[8] Within seven [7] days after any vacancy arises in the membership of the Board, the Minister
shall request the nominating body to submit a nominee under subparagraph [2] and the
nominating body shall do so within seven days after being requested to do so.

[9]The following shall apply with respect to the initial appointment of the Board following the
commencement of this Act –

[a] each nominating body shall submit its initial nominee within fourteen days after the
commencement of this Act;

[b] within ten [10] days after a sufficient number of the members of the Board are appointed to
form a quorum, the Minister shall call a meeting of the Board for the purposes of electing a
deputy chairperson.

2. Terms of members

[1] The term of office of each nominated member of the Board shall be for the duration of the
vetting process.

[2] A member of the Board shall, unless their office becomes vacant by reason of death,
resignation or ceasing to hold office by virtue of paragraph 3, continue in office until the expiry
of the mandate of the Board.

3. Resignation

[1] A nominated member of the Board may resign by a written resignation addressed to the
President.

[2] A resignation is effective upon being received by the President or by a person authorized by
the President to receive it.

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4. Termination of appointment

The President, on the recommendation of the Board, may in consultation with the Prime
Minister, terminate a person's appointment as a member of the Board only if the person-
[a] is unable to perform the functions of his office by reason of a mental, or physical infirmity;

[b] is adjudged bankrupt;

[c] is convicted of an offence under the Penal Code or this Act or an offence involving
dishonesty; or

[d]` is absent from three consecutive meetings of the Board without reasonable excuse.

5. List of Bodies to nominate members of the Board.

[1] The following bodies shall nominate sixteen [16] the Members of the Board

i. The Law Society of Kenya, four lawyers two men and two women;
ii. The International Federation of Women Lawyers [FIDA] Kenya Chapter, four
lawyers two men and two women;
iii. The International Commission of Jurists [Kenya Chapter], four lawyers two men
and two women;
iv. The Kenya Private Sector Alliance, two men and two women;

[2] The following bodies shall jointly nominate two [2] Members of the Board, one man and
one woman-
i. The Supreme Council of Kenya Muslims, one person;
ii. The Kenya Episcopal Conference; one person;
iii. The National Council of Churches of Kenya, one person;
iv. The Evangelical Fellowship of Kenya, one person.

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 The Vetting of Judges and Magistrates Bill, 2010

MEMORANDUM OF OBJECTS AND REASONS

The principal object of this Bill is to provide a comprehensive regime for the vetting of
Judges and Magistrates who were in office on the effective date in order determine their
suitability to continue serving in the judiciary in the new constitutional dispensation.

Part I provides for the short title and commencement date, interpretation of terms used and the
scope of application. It also articulates the purpose of vetting and the principles by which the Board
will be guided in discharging its mandate.

Part II provides for the establishment, composition, appointment [the details of which are
captured in schedule annexed hereto], mandate and powers of the Board. This part also provides
for a secretariat to be headed by two Joint Secretaries and supported by the requisite staff.

Part III provides for the procedural matters relating to the vetting process itself. Specifically,
the requirement that panels of three each sitting concurrently for expeditious disposal of the cases is
provided for. This part also defines the relevant considerations and elements of the rules of natural justice
that the Board will have regarded to. The order of processing and issues of preliminary and final
determination are also addressed. And to ensure that the ends of justice are served, the part also gives an
internal mechanism for review of decisions of a panel where the Judge or Magistrate whose matter is
under review is not satisfied with initial findings.

Part IV sets out the general provisions which include the timelines for the vetting process and
the requirement that a suitable package of terminal benefits be paid to those who elect to retire voluntarily
or found unsuitable after the vetting. This part also addresses issues of funds to cater for the expenses of
the Board including member’s allowances, protection from personal liability, and disclosure of personal
interest by members, matters of conflict of interest where certain persons are excluded from future
judicial appointments and finally the inherent powers of the Board.

The enactment of this Bill shall occasion additional expenditure of public funds which shall be
provided for through the estimates.

Dated the 25th August, 2010

Mutula Kilonzo,
Minister for Justice, National Cohesion & Constitutional Affairs.

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