Home » Media Centre » Blogs » Judicial Service Commission and Parliament Vetting - Who is Fooling Who?
By Mzalendo Contributor Moreen Majiwa
It seemed that the Judicial Service Commission would be the first commission formed without contention. However the decision by Parliament’s Justice and Legal Affairs Committee to call the lawyer elected to the Judicial Service Commission by the Law Society of Kenya, Mr. Ahmednasir Abdullahi, for a second meeting, whose nature and basis is unknown seems dodgy.
At an earlier meeting with the Justice and Legal Affairs Committee Mr. Ahmednasir Abdullahi questioned the jurisdictional competence and constitutional viability of the vetting process being carried out by the Committee. The Committee responded stating that the vetting process was perfectly legal, constitutional and within the procedures of the National Assembly. It stated further that the National Assembly had its rules on how Parliament approves appointments.
Though the National Assembly may have its rules on how it approves appointed persons the constitution takes precedence over these rules. The position occupied by the lawyer on the Judicial Service Commission is an elected position and not an appointed one.
The process through which an advocate is to serve on the Judicial Service Commission is outlined in Article 171 (2) (f) of the constitution. With regards to lawyers on the JSC Article 171 (2) (f) reads the Judicial Service Commission shall be constituted of ‘two advocates one woman and one man each of whom has at least fifteen years experience, elected by the members of the statutory body responsible for the professional regulation of advocates.’
Broken down in plain English, this means that the two advocates who are on the Judicial Service Commission will be elected i.e. chosen through a voting process. The constitution clearly states the voting process will be carried out by the body responsible for the professional regulation of advocates, in Kenya this is body is the Law Society of Kenya. At the elections carried out by the law society Mr. Ahmednassir was elected to the position having garnered 896 votes.
Neither on construction nor intent do the Articles 171 or Article 20 of Schedule 6 on the Judicial Service Commission make provisions for additional vetting of lawyers elected by the Law Society of Kenya by the Justice and Legal Affairs Committee. The process of vetting is one that is quite intensive and if indeed it were intended for the lawyers elected to the JSC to be vetted again by Justice and Legal Affairs Committee it would have expressly provided for.
No one disputes the importance of vetting people in leadership positions. However, the vetting done by the Justice and Legal Affairs Committee seems to have no legal grounding. Under Article 171 (2) (h) the only appointment that requires approval of the Parliament is the person appointed by the President. It important to note that is an appointed position not an elected one as in the case of lawyers.
The LSK vetted all the lawyers that ran for the position to ensure they were qualified. An election process was carried out and the lawyers elected in the manner provided for in the constitution. If there was need for vetting by any other body it should have taken place before the election process.
MPs ought to uphold the significance of elections. What if the during their elections once the elected another body was given had the right to vet them again?
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