References: Section 61 of Chapter IV of the Constitution provides for the president to appoint judges of the High Court, while Section 64 addresses appointments by the president to the Court of Appeal. The other officers of the judiciary are appointed by the Judicial Service Commission whose chair, the chief justice, like all its members, are appointed by the president. None of these processes offer opportunities for public participation.

Recently, the Kenya Law Society has acquired concessions allowing it to nominate candidates for the position of judge; but the final choice rests with the president. Judges have constitutional security of tenure, which highlights the risk posed by the appointment structure in Kenya.

The Kenya Chapter of the International Commission of Jurists has previously noted that:

"14. The appointment and promotion procedures for both Judges and Magistrates need to be improved to allow clear, transparent and objective criteria to be applied and verified for all judicial positions, including the position of Chief Justice.

15. In addition to nominal qualifications required by law, additional criteria should be required of candidates for judicial positions. These should include academic qualifications, integrity, ability and experience, and other objective criteria based on proper professional qualifications. These criteria should be applied to all appointments and promotions, including the position of the Chief Justice.

16. The Judiciary should adopt a policy for the progressive attainment of gender equality and remove discriminatory factors in all judicial appointments in the country.

17. Clear procedures in the nomination, selection and appointment of members of the Judiciary should be established. All Judicial vacancies, including those of the higher courts, should be advertised with clear deadlines for receiving applications. A consultative process must be set up where other stakeholders, such as the Law Society of Kenya, Federation of Women Lawyers-Kenya (FIDA), and other organizations, may provide nominations according to previously set criteria. A "vetting procedure" is recommended through the publication of final nominations that would invite any substantiated submissions from the public and other interested parties."

References: Sections 61 and 62 of the Constitution (in Chapter IV Part 1) address the appointment of the chief justice and High Court judges, while Sections 68 and 69 address the work of the Judicial Service Commission. Chapter IV Part 2 addresses the status of the "other courts" subordinate to the High Court, such as the Kadhi's Court. Besides the basic law degree, basic qualifications for these offices are invariably spelled out, such as Section 61 (3) specifying qualifications for judges of the High Court. However, appointments at the very top often appear politically contrived.

The Kenya Chapter of the International Commission of Jurists has previously noted that:

"The appointment and promotion procedures for both Judges and Magistrates need to be improved to allow clear, transparent and objective criteria to be applied and verified for all judicial positions, including the position of Chief Justice.

In addition to nominal qualifications required by law, additional criteria should be required of candidates for judicial positions. These should include academic qualifications, integrity, ability and experience, and other objective criteria based on proper professional qualifications. These criteria should be applied to all appointments and promotions, including the position of the Chief Justice.

The Judiciary should adopt a policy for the progressive attainment of gender equality and remove discriminatory factors in all judicial appointments in the country.

Clear procedures in the nomination, selection and appointment of members of the Judiciary should be established. All Judicial vacancies, including those of the higher courts, should be advertised with clear deadlines for receiving applications. A consultative process must be set up where other stakeholders, such as the Law Society of Kenya, Federation of Women Lawyers-Kenya (FIDA), and other organizations, may provide nominations according to previously set criteria. A "vetting procedure" is recommended through the publication of final nominations that would invite any substantiated submissions from the public and other interested parties."

Peer Review Comments: It would seem that ethnic balance is criteria in selecting judges. Some judges intellectual ability has been questioned and there has been allegations in the past of judges using clerks or interns assigned to them to write judgments on their behalf

However as the expansion in number of students of law as a result of parallel programs, many people with professional backgrounds have also now completed law degrees. The pool for potential judges has been greatly enriched as it is now possible to have judges with hands on experience in other areas beyond law

References: There is no independent review of the president's appointment of the chief justice or of the Judicial Service Commission's appointment of individual officers. Note that the chief justice is a political appointee and presides over the Judicial Service Commission. Hopefully, these seeming anomalies have been addressed by the draft constitution of 2009, which is presently being finalized.

Meanwhile, Parliament recently flexed its muscle in successfully instigating the withdrawal of the president's re-appointment of the head of the anti-corruption commission. In the event the new constitution does not provide for greater transparency in judicial appointments, Parliament is now aware of the clout it can wield and is likely to act over such issues.

References: While delivering judgment, the members of the judiciary are required to make an elaborate justification of the decision, citing the case law applied or whatever other precedence might be the basis of the decision. However, decisions in the lower courts can be quite peremptory.

The Judicature Act provides that:

3. (1) The jurisdiction of the High Court, the Court of Appeal and of all subordinate courts shall be exercised in conformity with - (a) the Constitution; (b) subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedule; (c) subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August,1897, and the procedure and practice observed in courts of justice in England at that date; but the common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.

(2) The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.

References: The judgment will always cite the pertinent law under which the case is being tried, especially so in prosecutions (as opposed to civil disputes). In high-profile cases where litigants have hired lawyers, judges will justify their decisions. But in the majority of cases involving the average citizen, often unrepresented by a counsel, judgments can be quite flippant. For example, in petty offenses, such as failing to carry a national identification card (interpreted as loitering) or drinking after hours, the accused will appear in groups in anticipation of their joint plea of guilty and have their judgments passed similarly. Besides the right of appeal, which is expensive, some outright dubious judgments have been subjected to review by senior judicial officers.

An example of justification of judgments can be seen at [ LINK ].

Peer Review Comments: Judges do not always give judgments in good time. there can be a huge delay in giving the written judgment once the case has been concluded.

Peer Review Comments: It is mandatory for members of the judiciary to give reasons for their decisions and they usually do, even if sometimes those reasons are wanting.

References: Section 62 (7) of the Constitution empowers the president to appoint a tribunal to investigate the conduct of the chief justice. Section 62 (5) empowers the president (on the recommendation of the chief justice) to appoint a tribunal to investigate any judge's conduct. Further, Judiciary has its own internal disciplinary mechanism based on the Judicial Service Commission, handling issues of employment, professional conduct, etc.

Members of the public can report judicial misconduct to the Registrar of the High Court, while complaints against advocates can be lodged with the Advocates Complaints Commission established by the Advocates Act (Cap 16).

Kenya has recently also acquired the Public Complaint Standing Committee described as, "a one-stop shop where you can report any case of misuse of office, corruption, unethical behavior, breach of integrity, maladministration, delay in provision of necessary services, any form of injustice, discourtesy incompetence, misbehavior or any efficiency or ineptitude on the part of public officials."

References: On the Judicial Service Commission, Section 68 (2) of the Constitution provides that: "In the exercise of its functions under this Constitution, the Commission shall not be subject to the direction or control of any other person or authority."

References: In the last decade or so, the Kenya judicial system has been the subject of several investigations, leading most recently to the much cited Kwach and Ringera Reports. While the latter cited more than 100 magistrates and judges for misconduct, only 20 challenged the allegations against them, reflecting the rot in the judiciary. As for the Advocates Complaints Commission, one of its mandates is for its 25-member team to investigate complaints received. One hopes that the effective running of the Public Complaints Standing Committee will translate into some positive actions against judicial inefficiency.

References: Quite a number of the judicial cases arising from the Ringera Report that have been concluded have resulted in the reinstatement of officers who were originally suspended. Those that chose not to challenge allegations against them seem to have implicitly accepted their guilt, which amounts to the judiciary imposing a penalty on them. For the report, see [ LINK ].

As for the Advocates Complaints Commission, its greater problem is denying justice through delayed resolution of cases. However, it does impose penalties, such as by withdrawing the practicing licenses of errant lawyers. Indeed, a long-serving parliamentarian who is currently a full cabinet minister remains debarred over impropriety with a client's money. For example, see [ LINK ].

References: As public officers, judicial officers are also governed by the Public Officers Ethics Act (Cap 203), which mandates asset disclosure.

References: As public officers, judicial officers are also governed by the Public Officers Ethics Act (Cap 203), which prescribes how to manage gifts and hospitality.

References: As with other public officer cadres, there are no clear guidelines on what is to be done with respect to the audit of asset declaration forms after these are submitted to the Judicial Service Commission.

Peer Review Comments: Although the Public Officer Ethics Act demands that members of the national-level judiciary -- just like other civil servants -- declare their wealth, it is difficult to ascertain whether this has ever been done.

References: There are no such legal restrictions for national-level judges entering the private sector after leaving the government. Indeed, judicial officers, especially the judges, are often sourced from private practice, which they leave but do not shut down during service. On departure from public service, many simply return to their private firms.

References: There are no such restrictions, with many judicial officers simply returning to their old private firms. Some of the officers whose practicing licenses were revoked during the 2003 purge have actually or reportedly established consultancies through which junior lawyers come to them for advice on how to conduct cases.

Peer Review Comments: This remains a malpractice that has continue to dog the system with impunity and people in the government appear to have very little to about it.

References: As with the other branches of government, there is not an effective means of enforcing the law concerning gifts and other considerations. Indeed, the public only becomes aware of such goings on in extenuating circumstances, as was the case with the Ringera Report ([ LINK ]).

References: The law (Public Officers Ethics Act) does not provide for this.

Peer Review Comments: Perhaps this gap in the law explains a number of judicial officers getting rich overnight in a country suffering serious case backlogs and where the judiciary largely stands accused of abetting corruption. Little wonder that wags in Kenya posit thus: "Why hire a lawyer if you can bribe a judge?"

References: The law (Public Officers Ethics Act) does not provide for this. Instead, the act imposes great confidentiality over the declarations.

References: The law (Public Officers Ethics Act) does not provide for this. Instead, the act imposes great confidentiality over the declarations.

References: The confidentiality provided by the Public Officers Ethics Act means it is impossible to access the declaration forms.

References: The confidentiality provided by the Public Officers Ethics Act means it is impossible to access the declaration forms.

Peer Review Comments: This makes it impossible for one to judge whether they are of high quality

Peer Review Comments: And because the public is not allowed access to such forms, it is, therefore, impossible to assess their quality.