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International Center for Policy and Conflict

Ambank House 13th Floor, Utali Lane off University Way

P O BOX 44564-00100

Nairobi Kenya

Email: admin@icpcafrica.org

www.icpcafrica.org

A REPORT ON

THE ACHIEVEMENTS AND CHALLENGES IN VETTING AND LUSTRATION UNDER THE NEW CONSTITUTION IN KENYA

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EXECUTIVE SUMMARY

This report explores the processes of vetting and lustration in Kenya in the contexts of the so far

cultivated achievements and the challenges up to where Kenya is today with the vetting

processes. The International Center for Policy and Conflict (ICPC) has for a long time engaged

in a number of campaigns on vetting and lustration through building policies for strengthening

change advocacies under the new Constitution of Kenya 2010 which is a new legal order that

provides for rules and regulations aimed at achieving comprehensive vetting of individuals and

institutions.

The report critically analyzes past commission of inquiry reports all of which point to serious

non implementation of their recommendations and a clear testimony of the history of impunity in

the country as a historical context in this report. It has also reviewed the process of vetting and

lustration in Kenya under the new Constitution legislation processes and put it in a comparison to

the other contexts outside Kenya which has also undergone the same experience.

There has been great keenness of highlighting the cultivated achievements and challenges that

the process has encountered so far and those still lying ahead. It therefore concludes by making

policy recommendations for the improvement of vetting and lustration process in Kenya.

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ABOUT ICPC

The International Center for Policy and Conflict (ICPC) is a non-profit and non-partisan

organization initiated in Kenya in the year 2001 but got official recognition as a trust in the year

2005, under the Trustee (Perpetual Succession) Act Chapter 164. It creates a civic platform to

foster democratic, peaceful, secure and just societies in Africa and globally. The Center is an

affiliate of Africa Open Democracy Foundation (AODF) and partner of Africa Rights and

Democracy Institute (ARDI). The core programmatic investment themes of the organization are:

Transitional Justice, Human Rights and Rule of Law; Gender Justice and Equality; Human

Security, Sustainable Development and Conflict Prevention; Human Capacity development,

Information-sharing and Partnership; Research Communications and Public Affairs; and

Institutional Development.

The organization maintains the vision to create and promote free society with dignity, equality

and justice for all while its long standing mission is to create, promote and engage platforms that

transform societies for positive change and human development. The organization main working

partners are human rights based organizations; civil societies focusing the accountability, Faith

based organizations, media, victims of human rights organizations, local community based

organizations and engage targeted state institutions and institutions of higher learning. ICPC

geographical areas of operation are within the Africa continent with much concentration in East

Africa where its office is based in Nairobi Kenya.

The Organization comprises of the five (5) members of the board, Management Committee and a

full-time programmatic and administrative paid staffs. In addition, it utilizes a network of

Associates and Consulting Experts and works in concert with other local, regional, and

international organizations. It also offers internship and fellowships. The Board members are

responsible for the strategic policy direction of the Center. The management committee

guarantees a sound internal management structure and policies that contribute to the optimal

functioning of the organization. The Executive Director is the head of the secretariat, responsible

for its management and implementation of policy directions, coordination of programmes and

ensuring accountability in utilization of its resources.

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TABLE OF CONTENTS…………………………………………………………… PG

PART I

1.0.INTRODUCTION…………………………………………………………….6

1.1.CONTEXT OF VETTING IN RELATION TO KENYA SITUATION... 8

1.2.VETTING LEGISLATIONS AND BODIES UNDER NEW

CONSTITUTION 2010…………………………………………………….. 14

1.2.1. Vetting of judges and magistrates act No. 2. of 2011……………………… 15

1.2.2. Public appointments (parliamentary approval act) No. 33 of 2011………. 18

1.2.3. Public officers and ethics act. No 4. of 2011………………………………... 19

1.2.4. National police service commission act of 2011…………………………….. 19

PART II

2.0. VETTING IN KENYA COMPARED TO OTHER CONTEXTS…………. 20

2.1. Vetting and lustration in Kenya under new constitution 2010……………….. 20

2.2. Vetting and lustration as seen from other contexts…………………………… 21

PART III

3.0. ACHIEVEMENTS OF VETTING PROCESS IN KENYA…………………22

3.1. Achievements by the magistrates and vetting board………………………….. 23

3.2. Transparency……………………………………………………………….........23

3.3. Created legal, political and public awareness on dealing with the past …….. 24

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PART IV

4.0. EMERGING CHALLENGES IN THE VETTING PROCESS………… 24

4.1. Hostility of the vetting panels……………………………………………….. 24

4.2. Flawed and procedurally unfair nomination process ……………………. 25

4.3. Lack of credibility during police vetting process………………………….. 26

4.4. Unconstitutional and biased laws……………………………………………26

4.5. Failure of vetting in TJRC………………………………………………….. 27

4.6. Other challenges facing vetting and lustration process……………………. 28

PART V

5.0. RECOMMENDATIONS AND CONCLUSIONS………………………... 29

5.1. Recommendations…………………………………………………………… 29

5.2. Conclusions……………………………………………………………………31

BIBLIOGRAPHY…………………………………………………………………

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PART I

1.0.INTRODUCTION

Vetting is a process of assessment and evaluation of the integrity of a person to determine the

sustainability of the requirements for holding a public office1 While Integrity refers to a person’s

adherence to relevant international standards of human rights and professional conduct including financial

propriety2. Vetting is a critical step in achieving public service reform and transitional justice and

the process must therefore be clearly defined in a specific piece of legislation. Vetting should be

conducted transparently as it contributes to social reconstruction in post-conflict or post-

authoritarian states by disabling repressive structures and replacing them with democratic state

institutions. Through the process of vetting, human rights violators and public officials found to

be responsible for serious crimes are prohibited from holding public office.

Vetting and lustration are concepts that are closely interlinked and are employed hand in hand to

achieve institutional reforms in a country in transition. Lustration refers to the transitional-justice

process in which individuals in public positions alleged to have been involved in gross human

rights violations and economic crimes in the past regime are prohibited from continuing holding

certain governmental and non-governmental posts for a specified amount of time to give room

for the vetting of their integrity records in past regime. The process enables states in transition to

interrogate individuals who may otherwise obstruct reform initiatives and transitional justice

efforts because of conflict of interests from borrowed from the past regime. Disqualification or

‘lustration’ of agents of the secret police, of military personnel, judges and other functionaries is

an alternative way to address the question of punishing those who are responsible for aggression

and repression. Such non-judicial disciplinary measures are usually meted out by administrative

agencies such as the electoral management body and civil service agencies.3

In post-conflict settings, vetting has the specific aim of transforming institutions involved in

serious abuses during the conflict into public bodies that enjoy civic trust and protect human

rights. The public, and particularly victims of human right violations, are unlikely to rely on

1 Office of the United Nations High Commissioner for human rights 2006: Rule of law tools for post conflict status- vetting, an operational frame work. New York, Geneva, Chapter. 3: pg 4 2 Ibid 3 Institute for Democracy and Electoral Assistance, Reconciliation After Violent Conflict; A Handbook (2003); pg 103. See also Brahm, Eric. "Lustration" in http://www.beyondintractability.org/essay/lustration/ accessed on 17/4/2012.

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institutions that retain or hire individuals with serious integrity deficits. Lustration is meant to

create a breathing space for democracy, where it can lay down roots without the danger that the

people in high positions of power will try to undermine it. [...] The aim of lustration is not to

punish people presumed guilty – this is the task of prosecutors using criminal law – but to protect

the newly-emerged democracy.4

Vetting is one of the most important processes in any transitional society. This is because public

institutions in such a society have been involved in abuse of human rights and other crimes

making public confidence in them become eroded. To reinstate public confidence, it is important

that people working in those public institutions adhere to at least minimum standards of human

rights, ethics and professional conduct. Vetting is not a new mechanism in the world but it is a

new mechanism in Kenya and some other parts of Africa. There is need to create awareness on

vetting by letting people know that there is a way of ensuring that those who abuse human rights

and do not adhere to professional conducts are stopped from holding political and public offices,

this becomes critical in the context of the new constitution dispensation in Kenya. In the light

of the new Constitution Vetting will be used to sieve incompetent people from public institutions

and streamline bloated public institutions to meet the needs of a transiting Kenyan society.

Further objectives of vetting and lustration processes include:

reforming institutions to improve their capacity to uphold the rule of law and respect for

human rights principles;

re-establishing citizens’ trust in the state and its institutions;

providing satisfaction to victims in cases where criminal prosecution may be

inappropriate, or is unlikely to be carried out;

Deterring perpetrators from further violations due to the punitive nature of the measures.

4 Severin, Measures to dismantle the heritage of the former communist totalitarian systems, Doc. 7568, 3 June 1996, p. 12, Para. 16.

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1.1. CONTEXT OF VETTING IN RELATION TO KENYA SITUATION

In general practice, there is no one single approach that fits all vetting processes; in each case,

the designers of any vetting process must make a number of basic decisions concerning what

they want to achieve and how they want to achieve it. In the world practice over, there are nine

common basic element decisions which must be laid as a bench mark and principle guides when

conducting vetting process, these elements are used to interrogate the vetting process in Kenya

that informs this report, these elements are; targets, criteria, sanctions, design, scope, timing

and duration, rationale and coherence

Targets: These are the institutions and positions that are to be vetted:

From a human rights perspective, the most important institutions to be vetted under general

circumstances would be those most responsible for having committed human rights violations, or

for allowing them to occur, under the previous regime or during the conflict. In post-conflict

situations, therefore, vetting tends to focus on those institutions implicated in serious, violent

human rights abuses, most obvious in the security sector and judicial sector institutions. In some

post-authoritarian cases, where less violent misconduct such as collaboration may have

implicated members of a wider range of institutions, vetting can also take on a broader range of

targets, including electoral posts like legislators, universities, and the media.5

In Kenya, even though there is lack of a comprehensive vetting legislated policy, the bodies

already and are still targeted for vetting are the judiciary, police, legislators, key commissions

like IEBC, and anti corruption. Kenya only has peace meal legislation enacted recently to give

the legality for vetting judges and police sectors. Vetting is not institutionally comprehensive in

Kenya to guarantee transitional justice spirit.

Criteria: These are the misconducts which were screened for

As a general rule, involvement in gross violations of human rights or serious crimes under

international law should always disqualify a person from public employment. These include in

particular genocide, war crimes, crimes against humanity, extrajudicial execution, torture and

5 Duthe, R. (2007). Justice as prevention. Vetting public employees in transitional societies: Introduction. Social science research council. USA. P. 20.

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similar cruel, inhuman, and degrading treatment, enforced disappearance, and slavery. These are

serious crimes which indicate a lack of integrity at a level that fundamentally affects a person’s

credibility to hold public service. Under police, actions and omissions which demonstrate

inability or unwillingness to uphold internationally recognized human right standards is a basis

for subjecting to a vetting6

Kenya vetting process criteria very much has relied on the past records of those who are vetted

majorly in areas touching corruption, abuse of office, un-ethical conduct, academic

incompetency, and immorality among others. Those who are alleged to have been involved in

great human right violations including civil servants in the public sectors and political leaders are

still in various offices in Kenya without being vetted. The vetting in Kenya has targeted much on

the civil servants and not political leaders both in the past and current.

Sanctions: What really happened to positively vetted individuals

Positive vetting results lead not only to the exclusion or the removal of the public official from

his or her post, but to a range of other sanctions as well. The nature of the sanction is important

directly and symbolically for both individuals and the process as a whole. If the vetting has a

punitive rationale, then it matters whether a person is fired, suspended, offered a retirement

package, transferred, given less responsibility, or simply has his or her past exposed. If the

vetting is aimed at transforming institutions in order to prevent the recurrence of abuses, then it

matters whether those who committed past abuses are actually removed from those institutions

or not.7

In Kenya, there is an offer within the vetting policy to consensually terminate your services to

avoid vetting but have an early retirement package if one feels that it might be an embarrassment

or he is not worth appearing before the vetting committee, however, for the those who disqualify

the test of vetting panels are always relieved of their responsibilities and public positions without

a benefit package for all the years they have worked for. However, they are still allowed by the

law to apply for the review of the vetting ruling in court if they feel the justice was not met on

6 Ibid p. 22. 7 Ibid. p. 24.

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their side, this is in line with the vetting policy that says its ruling is always final and the vetted

are not allowed to appeal. The two of the appeal judges in Kenya who had been removed from

the bench by the judicial vetting panel have so far challenged their fate in court for review.

Design: The type, structure, process and procedures of the vetting process adopted

Vetting process in some contexts is administrative review of past activities of employees of

public institutions; design of vetting might be done differently depending of the needs of the

transitional society in question. Nevertheless, it may be possible in certain instances to use

existing procedures and bodies to screen public employees. In most cases, however, a new set of

procedures is developed and at least one vetting body is created to perform or oversee the

process; such bodies must have their members selected, staffs hired, financial and material

resources apportioned, and security provided.

Crucial to how vetting is designed and implemented, from a transitional justice perspective, are

the procedural standards that the process maintains. As both Federico Andreu- Guzmán and the

“Vetting Guidelines” it is procedural guarantees that distinguish vetting from purges by ensuring

that they conform to international human rights standards. According to Andreu- Guzmán, a fair

and equitable vetting process will be one that is legitimate, safeguards human rights, is objective,

is governed by the rule of law, is based on the principle of individual responsibility, and is

relatively autonomous from criminal and regular disciplinary procedures. The specific minimal

procedural guarantees necessary to achieve this in a vetting process that involves removal or

dismissal of employees, he argues, include the right to appeal an adverse decision to a court.

Procedural guarantees should also be considered in relation to vetting sanctions: the more severe

the sanction, the more rigorous should be the due process standards.8

In Kenya, a part from the parliamentary vetting panels, there is no one single body responsible

for vetting, but there are legislations which has created different panels and boards for vetting

mechanism depending on the institution to be vetted. For instance the body which is responsible

for vetting in the judiciary is different with other panels responsible for vetting in other areas like

8 Ibid. p. 26.

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the police sector. The legislated law provides for the structural design procedure of the vetting

process, however, the other mechanisms like the administration process is designed by the

vetting committees responsible for vetting a given sector.

Scope: the number of people screened and sanctioned in the vetting process in

Kenya

Scope refers to the size, extent, or reach of a vetting process, in terms of the number of

individuals actually vetted. The measurable size of a vetting process includes both the number of

people who are screened and the number of people who are positively identified as having

engaged in the activity in question and who may then subsequently receive sanction. The scope

of vetting processes varies widely across the cases; it is a function of decisions about the

institutions and positions to be screened and the chosen criteria. And, as with many other

elements of vetting, the actual number of people affected by vetting will also depend on other

factors, such as the availability and reliability of information.9

In Kenya, vetting process has not been done in a wider institutional scope but targets more of the

incoming heads of the public institutions, even though the vetting has also targeted the already

serving heads of the public institutions like the judiciary, independent electoral and boundaries

commission and police sector, there is no clear published report in Kenya that indicates the

number of people so far vetted a part from the figure given verbally that cannot be relied upon.

Timing and Duration: Timing of vetting need and the number of people vetted in

Kenya

The other practices demonstrate that vetting processes differ widely in their timing and duration.

Timing refers to when, during a transition, vetting begins; duration refers to how long the

process lasts. The timing and duration of vetting will usually reflect the political landscape of the

transition period; they will also be determined in part by other characteristics of the process, such

as the numbers of institutions, positions, and people to be vetted. Timing can be important

because of its potential impact on institutions. Individuals who are excluded from institutions

9 Ibid. p. 27.

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early on in a transition will generally have less influence in the design and building up of those

institutions than individuals who are excluded later.10

In Kenya, it is not clear how many people were lined up in all the sectors that need vetting

processes. Likewise, duration to be taken during the process of vetting also remains the

prerogative of the vetting committee depending on other administrative procedures drawn by the

committee itself. Even as at now, the public is not aware who and from which institutions will be

targeted for vetting after summarizing the judiciary and the police sectors.

Rationale: Justifications and reasons for the vetting process in Kenya

The reasons for vetting public institutions can be numerous and contested. They can be both

broad and long term, as well as narrow and short term, and they can change over time. One can,

nonetheless, draw conclusions about the rationale behind vetting programs from the demands

made by the public, justifications made by the politicians and designers, the mandates and

legislation, and the nature of the process itself. At a broad level, some important reasons for

vetting are to punish the perpetrators, and to transform institutions in order to safeguard both the

democratic transition and to prevent the recurrence of human rights abuses. These rationales are

not mutually exclusive, and they are not necessarily considered with equal weight. The process

of vetting can be of the rationales of punitive vetting, administrative/institutional change, or

retributive vetting.11

In Kenya scenario, since political independence in 1963, both investigative and informative

commissions of inquiry have been formed for various reasons. However, the four major reasons

are to gather information by the executive, to respond to public pressure, problem solving,

appease the public and to settle political scores. Numerous commissions were formed to

investigate political assassinations, accidents, politically motivated ethnic cleansing, land

grabbing and mega scandals and corruption. However, even these commissions never conducted

their work in the context and scope of vetting but just mere finding information and drawing

recommendations.

10 Ibid. p. 29. 11 Ibid. p. 30.

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These commissions have been used as a pacifier for public and a great escape root for the

perpetrators. They do not have prosecutorial powers and all they can do is to recommend

prosecution. This has led to perpetrators to continue holding powerful public offices and political

offices. Kenya is in a transition mode after recently adopting a new Constitution in 2010. The

legislature has recently enacted several Acts of Parliament to provide justification and guidelines

on vetting and lustration in Kenya. This is meant to restore public confidence and to subject

these institutions and people working in them to vetting and Lustration.12

Coherence: relationship to other measures of institutional reform and transitional

justice in Kenya.

The coherence of a vetting program refers to its relationship with broader programs of

institutional reform and transitional justice. Vetting has an institutional impact and is therefore an

element of institutional reform. However, vetting can be implemented as a stand-alone measure

or as part of a broader program of institutional reform that seeks to change an organization’s

structure and mandate. This degree of coherence has implications regarding a vetting program’s

rationale. As a stand-alone measure, vetting is generally insufficient to ensure that abuses are not

repeated. A coherent and holistic approach to transitional reform is necessary — albeit not

sufficient — to effectively prevent abuses from recurring, other reform measures that reinforce

vetting in the aftermath of massive abuses are those seeking to improve accountability,

independence, representation, and responsiveness. Vetting is a measure of institutional reform,

and institutional reform, in turn, can be an element of a comprehensive transitional justice policy,

Support for such a holistic approach to transitional justice, which suggests that the different

measures reinforce each other and are insufficient on their own has been applied in many

contexts.13

In Kenya context, vetting is done in the context of reform and not in the wider scope of the

transitional justice systems as a policy within the government. In Kenya, it is possible to argue

that the vetting mechanisms are selectively coherent to some institutional reforms as it lacks a

comprehensive policy that governs its conduct in all institutional sectors. The ongoing process of

12 See, The International center for policy and Conflict (ICPC), Report on the Launch of Vetting and Lustration Campaign, 2010. 13 Ibid. p. 34

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vetting is protected by mere peace meal legislated policies only targeting selective sectors like

the Judiciary, Police, e.tc. Since vetting in Kenya is not done within the wider scope of the

transitional justice, it has comparatively failed to meet the required threshold of the best practices

world over since the concept of transitional justice is not a policy within the Government.

1.2. VETTING LEGISLATIONS AND BODIES UNDER NEW CONSTITUTION 2010

The new Kenyan Constitution 2010 provides the bedrock for vetting and lustration in Kenya.

Chapter 6 of the Constitution contains provisions detailing professional ethics and standards

which any state officer should observe and adhere to. This new legal order thus creates a

wonderful opportunity for Kenya to reform its institutions and uproot impunity which is

profoundly ingrained in these institutions.

Kenya has had over fifteen commissions of inquiry to investigate human rights abuses and other

acts of impunity relating to economic abuses. However, recommendations from these

commissions have never been acted upon; they are easily ignored by the ruling class thus

cementing impunity. According to a report by the international center for Policy and Conflict on

Vetting and Lustration, these commissions are not only expensive but they are inconsequential.14

The key Articles of the Constitution necessary for an effective vetting and lustration process

include the following: Article 35 of the Constitution, which is very vital to facilitate obtaining

relevant information that is useful for vetting. The article provides that: every citizen has a right

of access to information held by the state and by another person and required for the exercise or

protection of any right or fundamental freedom; every person has the right to the correction or

deletion of untrue or misleading information that affects the person; and that the state shall

publish and publicize any important information affecting the nation.

Another critical provision is Article 73 of the Constitution which provides for the responsibilities

of leadership. Article 73(2) provides the guiding principles of leadership and integrity to include

“selection on the basis of personal integrity, competence and suitability, or election of free and

fair elections, objectivity and impartiality in decision making, and in ensuring that decisions are

not influenced by nepotism, favoritism, other improper motives or corrupt practices, selfless

service based solely on the public interest demonstrated by honesty in the execution of public 14 Ibid

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duties and the declaration of any personal interest that may conflict with public duties,

accountability to the public for decisions and actions and discipline and commitment in service

of the people.”

Other provisions that are important for the purposes of vetting include Article 75 which provides

that any individual holding public office is subject to public scrutiny and moral scrutiny as well.

Article 77 which provides that public officials are to publicly declare their wealth, Article 99

which requires all people willing to vie for a parliamentary seat be subjected to the provisions of

Chapter six, Article 262 is more radical on judiciary and within one year after the promulgation

of the Constitution all judicial officers are supposed be subjected to a thorough vetting process.

In addition to the provisions provided above, the public has the right to freedom of expression as

provided in article 33, proactive disclosure as provided in article 35 which puts the duty on the

public to follow that through and seek records of any official that can be used in vetting.

Generally, the legislature as the organ of the government that is mandated to enact laws in Kenya

has so far passed various legislations that are supposed to guide the vetting and lustration

processes.

1.2.1. The Vetting of Judges and Magistrates Act, No. 2 of 2011

The Act provides for an independent Board to be known as the Judges and Magistrates Vetting

Board, consisting of nine members, including chairman and the deputy chairperson. The

members will include three non- citizen serving or retired judges who have served in a

Commonwealth country as a superior court Judge or Chief Justice.15 The mandate of the Board is

to “inquire into and determine the suitability of serving judges and magistrates to continue

serving in the judiciary.”16

Section 14 of the Act lays out the powers of the Board to include the gathering of information

considered relevant by the Board, including the requisition of reports, records, documents or any

information from any source (including government sources), and to compel the production of

the information when the Board deems that necessary. The Board can interview any person,

groups or members of organizations or institutions and it can hold inquiries for the purposes of

15 See Section 7 of the Act 16 See Section 13 of the Act

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performing its functions. In addition, the Board is not subject to the direction or control of any

person or authority.

The vetting procedures provided for in the Act allow the Board to divide its members into three

panels which could work concurrently. Each panel is to be composed in such a way that it

includes at least one judge, one lawyer and one non-lawyer respectively.17 It is important to set

out clearly the relevant considerations that the Board must consider in relation to each Judge or

Magistrate.

“18 (a): whether the judge or magistrate meets the constitutional criteria for appointment as a

judge of the superior courts or as a magistrate;

(b): the past work record of the judge or magistrate, including prior judicial pronouncements,

competence and diligence;

(c): any pending or concluded criminal cases before a court of law against the judge or

magistrate;

(d): any recommendations for prosecution of the judge or magistrate by the Attorney-General or

the Kenya Anti-Corruption Commission; and

(e): pending complaints or other relevant information received from any person or body,

including the – 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.”

In terms of procedure, the Board would first consider information it gathers through personal

interviews with the affected Judge or Magistrate as well as their records. The information

obtained by the Board through the interviews and records shall be confidential. The Judges and

Magistrates shall be given sufficient notice and the hearing of the Board may not be conducted in

public unless the Judge or Magistrate requests a public hearing. The Board’s proceedings shall

be guided by the rules of natural justice. In essence, the Board must ensure fair procedures and

fair hearing to the affected Judges and Magistrates. A Judge or Magistrate who submits to vetting 17 See Section 17 of the Act

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shall be entitled at their own cost, to legal representation.18 Where a Judge or Magistrate is

dissatisfied with a decision of the panel, it may appeal for review to another panel comprised of

the chairperson, the deputy chairperson and three other members who did not sit in the panel

whose decision is subject to review.

According to a certain newspaper report19 the General Secretary of the Law Society of Kenya

was quoted as saying that the LSK would ensure that judges about whom complaints have been

received would not return to the bench. According to the Secretary “we have laid down several

strategies to ensure that they do not make it back to the judiciary”.20

The Secretary enumerated complaints against judges to include temperament, incompetence,

hostility, making disparaging remarks against lawyers, pending bankruptcy, disappointing

judicial pronouncements, arrogance, introducing stringent rules and a strict dress code, delays in

issuing judgments and rulings, misconduct and open bias against some lawyers. While some of

the issues are relevant and require investigation, others give the impression that the Law Society

might soon become a lynch mob.

While elements within the judiciary in Kenya have brought collective shame on the institution,

the systemic issues need to be addressed in the search for lasting solutions. It has been reported

that as at December 2009, there were 910,013 cases pending in the courts in the country. Of

these cases, 398,136 related to traffic offences.21 Historically, traffic offences are the easiest to

resolve. From use of mobile courts to imposition of spot fines by traffic marshals, it is

scandalous that a litigant would be going to court for several weeks before a case of traffic

violation is concluded. As a result of the congestion in the courts, litigants with connections will

try to exploit the opportunity by having their cases quickly disposed of. The recent petition by

prisoners complaining of delays in finalizing prosecutions is a case in point. They cited evidence

of how quickly criminal prosecutions of well connected people were concluded in record time.

The accused persons were convicted, served time in prison, and have since been released. Yet,

18 Section 18 of the Act 19 Sam Kiplagat “Why lawyers have singled out 16 judges for dismissal from bench” Sunday Nation Newspaper, 26 September 2010: 4-5 20 ibid 21 Ibid

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many of the prisoners are still on awaiting trials, years after prosecution against them was

commenced.

1.2.2. The Public Appointments (Parliamentary Approval) Act No. 33 of 2011

The Act, provides for the procedure of vetting persons nominated for public appointments made

under the Constitution of Kenya, 2010 or any Act of Parliament that require Parliamentary

vetting done by the parliamentary vetting committee. The Act also provides for the criteria for

vetting or approving nominees for appointments. It also seeks to; enhance accountability and

transparency in public appointments.

In the past, public appointments in Kenya were not required by law to be vetted by parliament or

any other branch of government. Consequently, the executive used its unfettered powers to

appoint, by filling public offices in public service, the judiciary and other state organs; on the

basis of political patronage, tribalism, and nepotism. This has led to a culture of corruption, lack

of independence of those appointed, incompetence and loss of public confidence in the public

service and other state organs where appointments by the executive are made. Indeed, a recent

report by the National Cohesion and Integration Commission on ethnicity in the civil services

confirmed that Kenya’s public service is highly ethicized and reflects the now well known ‘it’s

our turn to eat’ syndrome.

The constitution heralds a new chance to reform not only the public service (by dedicating an

entire chapter to it), but also the manner in which the majority of key public office holders

should be appointed. The public appointments (parliamentary approval) Act, 2011 seeks to be

the vehicle towards that end, by providing provisions on; the procedure of parliamentary vetting

of public appointments where so required by the constitution or any other law, the considerations

in issue during vetting, public participation in the vetting process and procedural concerns on the

conduct of parliamentary vetting hearings and results thereof.

The vetting procedure as envisaged by the Act, in clause 5 requires that an appointing authority

should avail all enabling information in its possession, on the candidate nominated when

forwarding his nomination to the relevant house of parliament for parliamentary approval.

Indeed clause 5 (3) makes it clear that a notification of nomination is not valid unless such

accompanying information is given; including information on key considerations in clause 7

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such as: (a) the procedure used to arrive at the nominee; (b) any constitutional or statutory

requirements relating to the office in question; and (c) the suitability of the nominee for the

appointment proposed having regard to whether the nominee’s abilities, experience and qualities

meet the needs of the body to which nomination is being made.

This kind of information requirements upon the appointing authority will lessen the chances of

having the appointing power, doing so, in contravention of the law; as it happened when

President Kibaki in vain attempted to appoint top judicial officers and the controller of budget

early in 2011. There will be more circumspection of the procedure used and the quality and

integrity of the nominee by the appointing authority.

1.2.3. The public Officers ethics Act, No. 4 of 2011

This legislation was enacted to advance the ethics of public officers by providing for a Code of

Conduct and Ethics for pubic officers and requiring financial declaration from certain public

officers and to provide for connected purposes. Under this act are different commissions such as

judicial service commission, parliamentary service commission, and electoral commission

among others. These commissions shall have their own codes of conduct pertaining to their

areas. However the commissions shall adhere to sets of codes of conduct in part three before they

establish their own. This Act guided the Judicial Service Commission during the appointment in

the positions of chief justice, deputy and director of public prosecution.

1.2.4. National Police Service Commission Act 2011

This is an ACT of Parliament to provide for additional functions and powers of the National

Police Service Commission as provided for in the Constitution under Chapter Fourteen, Part 4;

the qualifications and procedures for appointment; and for connected purposes. The act also

provides the Commission with the authority of conducting the process of vetting the new police

officers.

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PART II

2.0. VETTING PROCESS IN KENYA COMPARED TO OTHER CONTEXTS

2.1. Vetting and Lustration in Kenya under New Constitution 2010

Vetting", that's a word Kenyans have gotten used to over the recent period. Vetting of

commissioners, Supreme Court judges, attorney general and the police has found their norm. For

the most part, specialized commissions, boards and parliament conduct the bulk of the vetting

process. These men and women strive to ensure that the public gets efficient, capable and

incorruptible individuals as their servants. They may not get it right all the time but their

appointments are far better than those in the era of political cronyism, tribalism and nepotism.

The commissioners would also be better placed to have a professional view on the profession at

hand as well as special interest groups.

The saga regarding the vetting in Kenya has been ever present in the media lately. The radical

"surgery" of the judiciary that took place, with much fanfare (as well as sadness for the

individuals shamed in public), though has given some light at the end of the tunnel, however,

there are still widespread complaints of corruption in the judiciary as well as complaints of

incompetence, intolerance and favouritism from the legal community. In the words of its head,

Chief Justice Willy, it is "...an institution so frail in its structures, so thin in resources, so low on

its confidence, so deficient in integrity, so weak in public support that to have expected it to

deliver justice was to be wildly optimistic. We found a judiciary that was designed to fail..."

It has to be said however, that all is not bleak in the judiciary. Confidence of Kenyans in the

judicial system has been on the increase since the enactment of the new constitution and the

ongoing reform process. This can be demonstrated by the sheer number of cases being brought

before the courts, especially those of a constitutional nature. Indeed the very case that brought a

hold to the vetting proceedings was as a result of the new found vigour. Therefore Kenyans

should get behind the vetting process as it is a process that is good for accountability and

integrity in order to clean up the mess that is the judiciary.

21

2.2. Vetting and Lustration as Seen from Other Contexts

Vetting and lustration are not new processes in African countries and beyond. The countries that

have put into use these processes to reform institutions include Liberia, Ghana, El Salvador, and

Bosnia among others. Case studies support such a holistic approach to transitional justice

whereby different measures reinforce each other and are insufficient on their own.

El Salvador, for example, the report of the truth commission, which named names and provided

a systematic critique of the armed forces, gave impetus to the vetting of the military leadership.

Box 1: A recent example of lustration / vetting processes in a post-conflict developing country (1993)

El Salvador – Ad Hoc Commission on the Military

The most notable recent example of lustration / vetting processes in a post-conflict developing country is

that of El Salvador, where an Ad Hoc Commission was established under the 1993 Peace Accords to

review the past performance of Salvadoran military officers, with reference to their human rights record,

their professional competence, and their capacity to function in a democratic society.22

To the surprise of many, particularly within the military, the all-Salvadoran Ad Hoc Commission

produced a secret report which charged more than one hundred officers with serious violations of human

rights and called for their dismissal. The members of the Commission remained outside El Salvador for

some time, due to safety concerns.23 The work of this Commission, combined with the efforts of the UN-

administered truth commission that followed it, resulted in the successful removal of 102 active military

officers (including all those named by the truth commission), and the Minister of Defence. However, it is

notable that this was carried out in most cases by retiring the officers, rather than firing them, which may

have considerably reduced the punitive effect.

In Bosnia, restoring confidence in the Judiciary and its ability to enforce the rule of law was one

of the principal reasons to put in place an effective reappointment process. A majority of the

public supported the reform and thought it would yield positive results. After vetting, the 22 The Commission consisted of three Salvadorans, with two retired Salvadoran generals acting as advisers. The government was obliged to implement the Commission’s recommendations within two months. 23 Buergenthal, T. The United Nations Truth Commission for El Salvador, Vanderbilt Journal of Transnational Law, Vol. 27, no. 3 (1994), pp 451-452.

22

Bosnian Judiciary was a remarkable mix of the ethnicities and genders that made up the

populace. The reforms that accompanied the vetting, led by a European Union-appointed High

Representative, also created mechanisms — like the current ones being attempted through

Kenya’s re-designed Judicial Service Commission — that shielded the Judiciary from external

political influences .

As the successful Bosnian experience teaches us, we should bear in mind that the principal

rationale for vetting is comprehensive personnel reform to build fair and effective institutions

without hindering the process of transition with endless finger pointing or providing a platform

for voicing of personal grievances. At its essence, it is constructive, not destructive.

In Ghana, the country adopted a new constitution in the year 1992; the appointment and vetting

of the ministerial nominees can be referred to as a process in perspective. The 1992 constitution

of Ghana represents the best effort to codify the countries aspiration for a democratic system of

government. This constitution provided a high profile of approval of the presidential nominees

by parliament which popularly they called “vetting”. The interests that were taken by the media

and the public at large in the process were very high and encouraging. The proceedings were

telecast live at least by one TV Station. The public got an opportunity to challenge the nominees

that may have given falls information to the committee. This mechanism has improved in Ghana

today through assessing the seriousness in with which the appointment committee of parliament

is tackling its appointment which currently provides the evidence of the healthy growth of the

Ghana democracy - notwithstanding the wholesome approval of the ministerial nominees

including those with question marks.

PART III

3.0.SUCCESSFUL ACHIEVEMENTS OF VETTING PROCESS IN KENYA

In order for the vetting process to be successful, it is vital that there is political will especially in

countries in transition where resistant to reform is a regular feature. Even though there are a

number of challenges, so far the process has cultivated a number of achievements which can be

outlined here.

23

3.1.Achievements by the Magistrates and Judges Vetting Board

The Magistrates and Judges vetting board released their determination of the first phase of

vetting process of the judiciary on 27th April 2012. The board was constituted to determine the

suitability of sitting judges and magistrates to continue serving in their capacities based on

ethical and performance grounds.

The board in its determination found that four judges - Justices Riaga Amollo, Samuel Bosire,

Emmanuel Okubasu and Joseph Nyamu – to be unfit to hold office. The panel rejected Judge

Omollo saying he lacks transparency and accused him of political bias and authoritarian

demenour while carrying out his activities on the bench. The panel declared Judge Samuel

Bosire as unsuitable to hold office as he was accused of condoning torture of suspects during

Coup trial in 1982.

The determination of the Board has set a landmark milestone in the transformation of the

judiciary in Kenya despite the challenges that the Board had faced during the initiation of the

process. The Board has sent a strong message for both the incumbent and new appointees of the

judiciary in Kenya. The message is clear and especially to the newly recruited judges that

incompetence and incongruence will not be entertained in the execution of their mandate.

3.2.Transparency

There has been transparency in recruitment of public of public officials through vetting. Such

improvements included public access to the proceedings through extensive media coverage,

increased public patronage of the proceedings exhibited by a rise in volume of petitions received

by the appointments committee and improvement in the substance of questions put to nominees.

The vetting of judges and magistrates is welcome, as it is an attempt to clean up the judiciary,

which is still viewed by some as incompetent and corrupt. This is despite the so-called 'radical

surgery' which was carried out in 2003, but is now widely viewed as a sham. The inclusion of the

requirement that the vetting board should adhere to the rules of natural justice is clearly designed

to avoid some of the pitfalls which befell the 2003 judicial purge, when over 23 judges were

24

suspended and 282 magistrates sacked over allegations of corruption without having been

afforded an opportunity to be heard.24

3.3.Created legal, political and public awareness on dealing with the past

The process of vetting in Kenya has contributed to the improvement of the debates about the

need of comprehensive legislations on vetting and political awareness among the public since the

process is a new discourse in Kenya. It has generated political debates among the civil society

groups as well as the general citizen on the benefits of lustration and vetting as a way of dealing

openly with the integrity of the people who want to qualify for the top public offices. As well it

has also served to interrogate the past profiles of the public officials believed in the public

domain to have been responsible for human rights violations in the past and therefore do not

deserve to continue holding those offices.

PART IV

4.0. EMERGING CHALLENGES IN THE VETTING PROCESS

4.1 Hostility of Vetting Panels

The vetting and lustration process in Kenya for individuals intending to hold top judicial and

constitutional commissions jobs has caused a lot of frustrations to individuals intending to

furnish the vetting panels with information about the candidates. Members of the public who

had prepared memorandums and other information for the panelists complained that they did not

get a chance because they were ‘little known’ and could not even get access to the premises

where the panel was sitting.25

The members of the vetting panels were hostile towards individuals providing them with

information about the candidates, denying them an opportunity to express their thoughts and

information they had which would assist to assess the eligibility of the would-be public officials.

24 Delivering expert knowledge to global counsel. Supreme court vetting of judges and magistrates October 19 2010. 25 See, the standard Newspaper, Vetting panel under spotlight over ‘hostility’, Published on 11/06/2011.

25

Constitutional lawyer Paul Muite expressed his disappointment in the procedure adopted by the

panels in the following terms “You do not vilify or cross-examine the person who is helping you

do your job by offering you information and news leads. Instead, you get the police or any other

qualified body to assist in investigation”.26 This behavior by the panelists was one of the greatest

challenges to a procedure intended to revolutionize the country’s system of hiring public officers

and checking on impunity.

The panelists also expressed hostility towards the candidates by posing to them humiliating and

humbling questions that are not related to the positions they had applied. Such questions

included the one posed by Tourism Assistant minister Cecily Mbarire toward Chief Justice

Nominee Willy Mutunga, “Are you gay, Dr Mutunga?". Many other such questions were put to

deputy CJ nominee Nancy Baraza, and the nominee for the post of DPP, Tobiko.

This raises questions about the competence of the panellists selected to sit in vetting and

lustration panels.

4.2 Flawed and Procedurally Unfair Nomination Process

Some of the Panels that were established to vet individuals for various top Constitutional

positions were accused of overlooking the qualifications of some of the candidates and thus

causing undue advantage to the others who were ranked way below them. Such was the case by

the National Police Service Commission which was blamed for compromising the nomination

process by overlooking the second ranked candidate for the post of chairperson.27

The name of Jean Kamau who was ranked second was struck off the list of names of the

candidates forwarded to President Mwai Kibaki and Prime Minister Raila Odinga for

consideration for the post of Chairman of the National Police Service Commission. The only

panellist who disagreed with that act, Ms Lydia Gachoya stated the following “This to me is

deceiving the two principals who will never know that Jean Kamau had even applied. The

26 Ibid 27 The Kenyan Daily Post, Vetting panel overlooks second ranked female nominee, posted on 23 February 2012, at http://www.thekenyanpost.com/2012/02/vetting-panel-overlooks-second-ranked.html accessed on 23/4/2012.

26

selection for the post of chairperson was not done by consensus and was flawed and procedurally

had errors, was biased, discriminatory and in my opinion rampant inequality was evident”28

4.3 Lack of Credibility during Police Vetting Process

The vetting of the police had initially taken a wrong turn where it was being done

unconstitutionally without the guidance of the requisite legislation – the National Police Service

Act, 2010. By the time the first round of police vetting was done targeting all the officers above

the rank of superintendent the Act had not been enacted and therefore the process lacked

credibility and basis on which it was being undertaken.

This phase of vetting had been initiated by the Ministry of internal Security and targeted senior

police officers. In this regard, the Kenya National Commission on Human Rights Executive

director observed that “Police cannot possibly vet themselves and achieve the desirable results. A

precedent has been set in the nomination of Judiciary Officers. It is therefore extremely

disappointing that the vetting process has reverted to the old ways of conducting public affairs in

an opaque manner”.29

4.4 Unconstitutional and biased Laws

Some of the legislations on vetting of public officials are unconstitutional and thus limit the

effectiveness of the vetting process as contemplated under the New Constitution 2010.

The Public Appointments (Parliamentary Approval) Act 2011 for instance under Section 6 (6)

gives an unconditional right to parliament to have hearings wholly or in part in camera; either on

the request of the candidate, on the motion of the relevant committee or any other person (which

may include even the appointing authority). This is an unconstitutional limitation to the right to

public participation and fundamentally that of the media under article 34.

The National Security Intelligence Act which is a key law in the reforming the security sector

was drafted by the NSIS itself rather than the concerned Ministry of State for Provincial

Administration and internal Security. The Bill did not therefore undergo the due process that

28 Ibid 29 See, Judith Akolo, Activists call for discontinuation of police vetting, at http://www.kbc.co.ke/news.asp?nid=70692 accessed on 23/4/2012.

27

other Bills undergo. This acted to hamper the reform of the NSIS which was supposed to be done

as part of the ongoing Security Sector reform that encompassed all security agencies in Kenya.

4.5 Failure of Vetting in TJRC

The appointment of the chair sparked a lot of disagreement with some human rights filing a suit.

Surprisingly, even as pressure piled for the chair to resign, he vowed not to leave posing the

question as to how the vetting was done only to arrive at an individual whose integrity is in

question. How could a committee comprised of diverse representation settle for the chair whose

past actions are in question? This is just one example where vetting process was unsuccessful

leading to resignation of the chairperson ambassador Kiplagat.30

The TJRC process was meant to address the cause and effects of historical injustices and gross

violations of human rights that would contribute towards national unity, reconciliation, healing

and restoration of the human dignity of victims and perpetrators. Unfortunately these may not be

achieved due to the following factors;

Since onset of the process there has been laxity by the commission to properly sensitize

members of the public on the TJRC mandate, objectives and its operations as envisaged

in the TJRC act 2008. This was witnessed during the public hearings when witnesses

gave accounts on issues that were clearly out of the TJRC mandate.

The process suffered from total lack of witness protection. In some areas the hearings

meant to be in camera were carried out in an open tent just a few metres from the main

public venue. This exposed the witnesses to a lot of danger, a case in point being

Kericho.

Most of the venues were not accessible to many and there was no earlier communication.

This made it difficult for the public to participate. They were also changed in random

without due notification. Additionally they were not disability friendly.

On presentation of testimonies and memoranda there was no merit in most regions as

witnesses were denied the opportunity to appear before the commission. A case in point

is in Kisumu where many witnesses who had submitted their statements but only a 30Francis Mureithi, Kenya TJRC Doesn’t Deserve More Time, 5th March 2011.Available at <http://allafrica.com/stories/201103070178.html>, as at 27th May 2011.

28

fraction was heard. It was observed that in some regions the process was influenced by

the politicians e.g. in Kericho a close ally of a known politician made presentation on

behalf of the Kipsigis Community and the Ndorobo Community complained that

whoever made the presentation on their behalf was not even known to the locals. It was

noted in Kisumu a well known activist was used to influence those who made

testimonies.

On statement taking, it is not known the criteria used by the commission to map the areas

in which the statements were recorded since many people complained of not being

reached yet they had serious issues they wanted addressed. This has been observed in

Western, Nyanza, Coast and North Eastern regions.

There were no counselling services available for victims and perpetrators. In Kericho a

witness who had a bullet still lodged in his head after the post election violence narrated

his ordeal but the Commission did nothing to help him recover from the trauma. He still

walks around with that challenge.

In some places the commissioners did not turn up thus had 1 or 2 commissioners which is

against the provision in the TJRC ACT this was witnessed in Kajiado where we had only

one commissioner.

4.6 Other Challenges facing Vetting and Lustration Process in Kenya

Other challenges to the process include:

i) Administrative difficulties: these concerns primarily the issue of political will to

implement the vetting process within the institutions; who should undergo

screenings? The sources and documents, laws and standards on which the behavior of

officers will be evaluated; whether or not society is financially capable of supporting

what is often an expensive process, and the timelines of the process.

ii) Vetting may be used as a tool for revenge against political opponents, or result in

human rights violations against those who are subject to a compromised vetting

process.

iii) Also relevant is the fact that mass vetting within state institutions and the removal of

a great number of officers can bring about a lack of personnel able to perform the

most important functions and the collapse of already weak state institutions.

29

iv) The international community has criticized the law on grounds that it discriminates

in employment and there by violates human rights standards

v) Lustration law can lead to numerous individuals being unfairly lustrated if the

process is not properly handled or if it is subject to political manipulation.

vi) Those facing the lustration process will have the opportunity to challenge their

lustration via some sort of formal hearing. Such individualized hearings consume a

great deal of time and resources, because of the large numbers of potential suspects.

vii) The lustration law has in several quarters been criticized for weakening the principle

of legal certainty. This is because lustrations laws seem to create new legal standards

that are to apply retrospectively.

viii) The ascertainment of violations that would make one subject to lustration law has to

be through a procedure that complies with the requirement of procedural due process

of law. This complicates the process where standard of proof are high or where

institutional capacity to investigate is poor.

ix) Under lustration there may be the tendency for focus on individuals as opposed to

governance systems and/or institutions.

PART V

5.0. RECOMMENDATIONS AND CONCLUSION

5.1. RECOMMENDATIONS

The vetting process should be multi-sectoral; for example it should include representation

from all interested parties like civil societies, religious groups, and student organizations

among others.

Affirmative action should be adhered to when considering candidates for various posts.

This should include members of the minority, women, and persons with disabilities

among other disadvantaged groups. However the panel should take caution not to overdo

it to an extent of losing the objective of the whole process.

The vetting process should be made public. This encourages public participation as well

as ensuring transparency in the process. At the end of each vetting, public should be

satisfied that indeed the process was free and interactive.

30

All aspects of vetting should be captured in the process. This should include the criteria

used in terms of advertisement, short listing and interviews. In addition, the criteria used

in short listing should be clear and made public on what was considered when short

listing.

There should be proper legislation on the process. All areas that require vetting should

clearly be spelt out and the procedure for specific areas are put in place. This will help in

avoiding haphazard vetting like the one witnessed in police force where the police vetted

themselves and there was no publicity hence rendering the process opaque.

Political intrigues should not mix with the vetting process because by doing so the

process loses its objectivity. Candidates should be vetted based on their qualifications and

in accordance with chapter six of the constitution not on party affiliations. On the other

hand, politicians should demonstrate professionalism to avoid unnecessary argument in

favor or against a particular candidate when the process reaches the floor of the house.

5.2. CONCLUSION

When the new constitution was promulgated on August 27th, 2010, Kenyans, locally and in the

diasporas, rejoiced as they welcomed the change that would take Kenya from one of the most

corrupt countries in the world, to a state that would enjoy democratic rule, accountable

governance, and adherence to the rule of law. However, while most were ecstatic about the new

constitution, there were few who realized that the signing of the document was just a symbol of

the beginning of change. Implementing the constitution would be the actual move needed to

shape Kenya’s promising future.

With the national cry for a democratic and accountable state, the vetting process has become one

the most important steps taken towards a promising future for Kenya. Many have viewed the

process as a fair one that should extend to the vetting of elected Members of Parliament (MPs),

and appointed Ministers and Ambassadors.

However, despite the demand that all who hold public offices should be vetted, one must

wonder to what extent the nation can vet its leaders. It is one thing to vet candidates for

appointed positions, but to vet elected MP’s would be to assume that the entire Kenyan

31

population are ready and willing to elect leaders who are educated, experienced, act with

integrity. This would also be assuming that the 50% of Kenyans who live below the poverty line

would be willing and ready to turn down money in return for their votes; a corrupt practice that

has been observed in past election years. The only solution to ensure that Kenyans will not

exchange money for votes, would be to work on decreasing the poverty rate in the country by

creating jobs, improving education, and stimulating the economy to lower the current living

standards.

32

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Kritz, describing non-criminal sanctions as a missing link in the evolution of a comprehensive

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