Vetting of Judges and Magistrates Act

Section 1. Short title Section This Act may be cited as the Vetting of Judges and Magistrates Act, 2011.

Section 2. Interpretation Section 2(1) In this Act, unless the context otherwise requires— "Board" means the Judges and Magistrates Vetting Board established by section 6 ; "chairperson" means the chairperson of the Board ("the Judges and Magistrates Vetting Board established by;") appointed under section 9 ; "deputy chairperson" means the deputy chairperson of the Board ("the Judges and Magistrates Vetting Board established by;") elected under section 10 ; "effective date" means the 27th August of 2010; "judge or magistrate" means a judge or magistrate to whom this Act applies in accordance with section 3 , and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates; "member" means a member of the Board ("the Judges and Magistrates Vetting Board established by;") appointed under section 9 , and includes the chairperson and the deputy chairperson; "Minister" means the Minister for the time being responsible for matters relating to the Judiciary; "pending complaint" means a complaint filed or registered with any person or body mentioned in section 18 (e...

Section 3. Object and purpose of the Act Section The object and purpose of this Act is to establish mechanisms and procedures for the vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") of judges and magistrates pursuant to the requirements of section of the Sixth Schedule to the Constitution.

Section 4. Application Section For the avoidance of doubt, the provisions of this Act shall apply only to persons who were serving as judges or magistrates and who were in office on or before the effective date ("the 27th August of 2010;") .

Section 5. Guiding principles Section In the exercise of its powers or the performance of its functions under this Act, the Board ("the Judges and Magistrates Vetting Board established by;") shall at all times, be guided by the principles and standards of judicial independence, natural justice and international best practice.

Section 6. Establishment of theBoard Section 6(1) There is established an independent board to be known as the Judges and Magistrates Vetting Board ("the Judges and Magistrates Vetting Board established by;") . Section 6(2)(a) suing and being sued; Section 6(2)(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; and Section 6(2)(c) doing or performing all such other things or acts for the proper discharge of its functions under the Constitution and this Act as may be lawfully done or performed by a body corporate. Section 6(3) The provisions of the State Corporations Act ( Cap. 446 ) shall not apply to the Board.

Section 7. Membership of theBoard Section 7(1)(a) six shall be citizens of Kenya appointed in accordance with section 9 (1) to (12) and of whom three shall be lawyers; and Section 7(1)(b) three shall be non-citizens of Kenya appointed in accordance with section 9 (13). Section 7(2) Notwithstanding subsection (1), the Board ("the Judges and Magistrates Vetting Board established by;") may, for the purpose of the vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") of magistrates, co-opt such members of the Judicial Service Commission as it considers necessary to its membership provided that such co-opted members are not serving magistrates. [Act No. 43 of 2012 , s. 3.]

Section 8. Qualifications for appointment Section 8(1)(a) holds a degree from a university recognised in Kenya; Section 8(1)(b) has at least fifteen years’ distinguished post qualification experience in their field of study; and Section 8(1)(c) satisfies the requirements of Chapter Six of the Constitution. Section 8(2) A person shall not be qualified for appointment as the chairperson ("the chairperson of the Board appointed under;") or deputy chairperson ("the deputy chairperson of the Board elected under;") unless such person has at least twenty years’ or an aggregate of twenty years’ experience as a judge of a superior court, a distinguished legal academic, a judicial officer or other relevant legal practice in the public or the private sector in Kenya. Section 8(3)(a) Parliament; or Section 8(3)(a)(i) Parliament; or Section 8(3)(a)(ii) a local authority; or Section 8(3)(a)(iii) the executive organ of a political party; or Section 8(3)(b) was serving as a judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative...

Section 9. Procedure for appointment of members Section 9(1) The President, in consultation with the Prime Minister ("the Minister for the time being responsible for matters relating to the Judiciary;") and with the approval of the National Assembly, shall appoint the nine members of the Board ("the Judges and Magistrates Vetting Board established by;") in accordance with the procedure set out in this section. Section 9(2) Within seven days of the commencement of this Act, the President, in consultation with the Prime Minister ("the Minister for the time being responsible for matters relating to the Judiciary;") shall, by notice in the Gazette and in at least two newspapers of national circulation, declare vacancies in the Board ("the Judges and Magistrates Vetting Board established by;") under section 7 (a) and call for applications. Section 9(3)(a) any qualified person; or Section 9(3)(b) any person, organisation or group of persons proposing the nomination of any qualified person. Section 9(4) The names of all applicants under sub-section (3) shall be published in the Gazette . Section 9(5)(a) Cabinet Office; Section 9(5)(b) Office of the Prime Minister ("the Minister for the ti...

Section 10. Election ofdeputy chairperson Section 10(1) The chairperson ("the chairperson of the Board appointed under;") shall, within seven days of the appointment of the members, convene the first meeting of the Board ("the Judges and Magistrates Vetting Board established by;") at which the members shall elect the deputy chairperson ("the deputy chairperson of the Board elected under;") of the Board ("the Judges and Magistrates Vetting Board established by;") from amongst their number. Section 10(2) The chairperson ("the chairperson of the Board appointed under;") and the deputy chairperson ("the deputy chairperson of the Board elected under;") shall be of opposite gender.

Section 11. Functions ofchairperson Section 11(1)(a) preside over all meetings of the Board ("the Judges and Magistrates Vetting Board established by;") ; Section 11(1)(b) be the spokesperson of the Board ("the Judges and Magistrates Vetting Board established by;") ; and Section 11(1)(c) supervise and direct the work of the Board ("the Judges and Magistrates Vetting Board established by;") . Section 11(2) In the absence of the chairperson ("the chairperson of the Board appointed under;") , the deputy chairperson ("the deputy chairperson of the Board elected under;") shall perform the functions of the chairperson ("the chairperson of the Board appointed under;") under subsection (1).

Section 12. Tenure and vacancy of office ofchairpersonand members Section 12(1) The term of office of the chairperson ("the chairperson of the Board appointed under;") or a member ("a member of the Board appointed under, and includes the chairperson and the deputy chairperson;") shall be from the date of appointment and shall, unless the office falls vacant earlier owing to any reason specified in the Constitution or in subsection (2), terminate on the dissolution of the Board ("the Judges and Magistrates Vetting Board established by;") . Section 12(2)(a) dies; Section 12(2)(b) by a notice in writing addressed to the President, resigns from office; Section 12(2)(c) is removed from office under subsection (3); Section 12(2)(d) is convicted of an offence and sentenced to imprisonment for a term of six months or more, without the option of a fine; Section 12(2)(e) is unable to discharge the functions of his office by reason of physical or mental infirmity; Section 12(2)(f) is absent from three consecutive meetings of the Board ("the Judges and Magistrates Vetting Board established by;") without good cause; or Section 12(2)(g) is adjudged bankrupt. Section 12(3) The chairperson ("the c...

Section 13. Function of theBoard Section The function of the Board ("the Judges and Magistrates Vetting Board established by;") shall be to vet judges and magistrates in accordance with the provisions of the Constitution and this Act.

Section 14. Powers of theBoard Section 14(1)(a) gather relevant information, 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; Section 14(1)(b) interview any individual, group or members of organisations or institutions and, at the Board ("the Judges and Magistrates Vetting Board established by;") ’s discretion, to conduct such interviews; and Section 14(1)(c) hold inquiries for the purposes of performing its functions under this Act. Section 14(2)(a) may inform itself in such manner as it thinks fit; Section 14(2)(b) may receive on oath, written or oral statements; Section 14(2)(c) shall not be bound by strict rules of evidence; and Section 14(2)(d) shall not be subject to the direction or control of any person or authority.

Section 15. Secretary and secretariat Section 15(1) There shall be a secretariat of the Board ("the Judges and Magistrates Vetting Board established by;") which shall be headed by a secretary ("the secretary of the Board appointed under;") who shall be competitively recruited and appointed by the Board ("the Judges and Magistrates Vetting Board established by;") in accordance with this section. Section 15(2)(a) holds at least a degree from a university recognised in Kenya; Section 15(2)(b) has at least ten years’ post-qualification experience; Section 15(2)(c) has demonstrated competence in the performance of administrative duties for not less than five years; and Section 15(2)(d) was not serving as a judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") on the effective date ("the 27th August of 2010;") . Section 15(3) The secretary ("the secretary of the Board appointed under;") shall be the administrator of the secretariat and shall serve on a full-time...

Section 16. Assisting counsel and staff Section 16(1)(a) such number of assisting counsel and staff as the Board ("the Judges and Magistrates Vetting Board established by;") may appoint to assist it in the discharge of its functions under the Constitution and this Act; and Section 16(1)(b) such public officers as may, upon the request of the Board ("the Judges and Magistrates Vetting Board established by;") , be seconded to the Board ("the Judges and Magistrates Vetting Board established by;") . Section 16(2) A public officer who is seconded to the Board ("the Judges and Magistrates Vetting Board established by;") under subsection (1) shall, during the secondment, be deemed to be an officer of the Board ("the Judges and Magistrates Vetting Board established by;") and subject to its direction and control.

Section 17. Panels Section 17(1) The chairperson ("the chairperson of the Board appointed under;") may, for the purpose of ensuring the expeditious disposal of matters, constitute three or more panels to work concurrently in the vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") of judges and magistrates. Section 17(2) The chairperson ("the chairperson of the Board appointed under;") shall ensure that each panel constituted under subsection (1) consists of at least a non-citizen serving or retired judge, a lawyer and a non- lawyer. Section 17(3) Notwithstanding subsection (1), the vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") of judges shall be undertaken solely by the members of the Board ("the Judges and Magistrates Vetting Board established by;") appointed under section 7 (1). [Act No. 43 of 2012 , s. 5.]

Section 18. Relevant considerations Section 18(1)(a) whether the judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") meets the constitutional criteria for appointment as a judge of the superior courts or as a magistrate; Section 18(1)(b) the past work record of the judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") , including prior judicial pronouncements, competence and diligence; Section 18(1)(c) any pending or concluded criminal cases before a court of law against the Judge or Magistrate; Section 18(1)(d) any recommendations for prosecution of the Judge or Magistrate by the Director of Public Prosecutions or the Kenya Anti-Corruption Commission; and Section 18(1)(e) Law Society of Kenya; Section 18(1)(e)(i) Law Society of...

Section 19. Vetting procedure Section 19(1) The Board ("the Judges and Magistrates Vetting Board established by;") shall consider information gathered in the course of personal interviews with the affected judges and magistrates as well as their records. Section 19(2) All information obtained by the Board ("the Judges and Magistrates Vetting Board established by;") during personal interviews and records of the Judge or Magistrate being vetted shall be confidential. Section 19(3) Every judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") to be vetted shall be given sufficient notice. Section 19(4) The notice referred to under subsection (3) shall include a summary of complaints, if any, against the Judge or Magistrate. Section 19(5) The hearing by the Board ("the Judges and Magistrates Vetting Board established by;") shall not be conducted in public, unless the concerned judge or magistrate ("a judge or magistrate to whom this Act applies in accordance wit...

Section 20. Order of priority Section The first judges and magistrates 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 magistrates, in that order.

Section 21. Determination Section 21(1) The Board ("the Judges and Magistrates Vetting Board established by;") shall, upon determining the unsuitability of a judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") to continue serving in the Judiciary, within thirty days of the determination, inform the concerned judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") of the determination, in writing, specifying the reasons for the determination. Section 21(2) Once informed of the decision under subsection (1), the Judge or Magistrate shall, subject to section 22 , be deemed to have been removed from service. Section 21(3) The decision to remove a judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with,...

Section 22. Review Section 22(1) A judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") who has undergone the vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") process and is dissatisfied with the determination of the Board ("the Judges and Magistrates Vetting Board established by;") may request for a review by a new panel to be constituted by the Chairperson of the Board ("the Judges and Magistrates Vetting Board established by;") within seven days of being informed of the final determination under section 21 (1). Section 22(2)(a) on the discovery of a new and important matter which was not within the knowledge of, or could not be produced by the Judge or Magistrate at the time the determination or finding sought to be reviewed was made, provided that such lack of knowledge on the part of the Judge or Magistrate was not due to lack of due dilige...

Section 23. Time frame Section 23(1) The vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") process once commenced shall not exceed the period specified by this section. Section 23(2) The vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") process, once commenced, shall be concluded not later than the 31st December, 2015 and any review of a decision of the Board ("the Judges and Magistrates Vetting Board established by;") shall be heard and concluded within the above specified period. Section 23(3) Despite subsection (2), the Board ("the Judges and Magistrates Vetting Board established by;") shall conclude the process of vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") all the judges, chief magistrates and principal magistrates not later than the 28th March, 2013 and any review of a decision of the Board ("the Judges and Magistrates Vetting Board establishe...

Section 24. Voluntary retirement and terminal benefits Section 24(1)(a) whether to be subjected to the vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") process; or Section 24(1)(b) to leave the judicial service voluntarily. Section 24(2) A judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to administrative tribunals, in their capacity as judges or magistrates;") who elects to leave the judicial service voluntarily or is found unsuitable after vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") shall be entitled to terminal benefits for early retirement. Section 24(3) For the avoidance of doubt, a judge or magistrate ("a judge or magistrate to whom this Act applies in accordance with, and includes the Registrar of the High Court and the Chief Court Administrator and their deputies, and persons seconded to admi...

Section 25. Allowances for members Section The Board ("the Judges and Magistrates Vetting Board established by;") shall pay to its members such allowances for expenses as may be determined by the Minister ("the Minister for the time being responsible for matters relating to the Judiciary;") in charge of finance.

Section 26. Annual estimates Section 26(1) The financial year of the Board ("the Judges and Magistrates Vetting Board established by;") shall be the period of twelve months ending on the 30th of June in each year. Section 26(2) At least three months before the commencement of each financial year, the Board ("the Judges and Magistrates Vetting Board established by;") shall cause estimates of the expenditure of the Board ("the Judges and Magistrates Vetting Board established by;") for that year to be prepared and submitted to the Minister ("the Minister for the time being responsible for matters relating to the Judiciary;") who shall present them for consideration and approval by the National Assembly. Section 26(3) The annual estimates shall make provision for all the estimated expenditure of the Board ("the Judges and Magistrates Vetting Board established by;") for that year.

Section 27. Funds of theBoard Section 27(1) The expenses incurred by the Board ("the Judges and Magistrates Vetting Board established by;") in accordance with this Act shall be charged on and issued out of the Consolidated Fund and the appropriation for the expenses shall be included in the Appropriation Bill introduced in the National Assembly to authorise the withdrawal from the Consolidated Fund. Section 27(2) Without prejudice to subsection (1), there may be made to the Board ("the Judges and Magistrates Vetting Board established by;") grants, gifts, donations or bequests towards the achievement of the objects of the vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") process specified in section 3 . Section 27(3) The Board ("the Judges and Magistrates Vetting Board established by;") shall not accept any grant, gift, donation or bequest made on any condition that the Board ("the Judges and Magistrates Vetting Board established by;") performs any function or discharges any duty or obligation other than duties under this Act.

Section 28. Accounts and audit Section 28(1) The Board ("the Judges and Magistrates Vetting Board established by;") shall cause to be kept proper books and records of accounts of its income, expenditure, assets and liabilities. Section 28(2) The annual accounts of the Board ("the Judges and Magistrates Vetting Board established by;") shall be prepared, audited and reported upon in accordance with the Public Audit Act ( Cap. 412B ).

Section 29. Protection from personal liability Section 29(1) No matter or thing done by a member ("a member of the Board appointed under, and includes the chairperson and the deputy chairperson;") of the Board ("the Judges and Magistrates Vetting Board established by;") , or any officer, employee or agent of the Board ("the Judges and Magistrates Vetting Board established by;") shall, if the matter or thing is done in good faith for executing the functions, powers or duties of the Board ("the Judges and Magistrates Vetting Board established by;") , render the member ("a member of the Board appointed under, and includes the chairperson and the deputy chairperson;") , officer, employee or agent personally liable to any action claim or demand whatsoever. Section 29(2) The provisions of subsection (1) shall not relieve the Board ("the Judges and Magistrates Vetting Board established by;") of liability to pay compensation for damage to any person for any personal or proprietary interest sustained by the person as a result of the exercise of any power conferred by this Act or by the failure, whether wholly or partially, of any works.

Section 30. Oath or affirmation of office Section The chairperson ("the chairperson of the Board appointed under;") , the deputy chairperson ("the deputy chairperson of the Board elected under;") , the members and the secretary ("the secretary of the Board appointed under;") shall, before assuming office, make and subscribe, before the Chief Justice, the respective oath or affirmation prescribed in the Schedule.

Section 31. Disclosure of personal interest Section 31(1) A member ("a member of the Board appointed under, and includes the chairperson and the deputy chairperson;") of the Board ("the Judges and Magistrates Vetting Board established by;") who has a direct or indirect personal interest in a matter being considered or to be considered by the Board ("the Judges and Magistrates Vetting Board established by;") 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 ("the Judges and Magistrates Vetting Board established by;") . Section 31(2) A disclosure of any such interest in a matter shall be recorded in the minutes of the meeting of the Board ("the Judges and Magistrates Vetting Board established by;") and the member ("a member of the Board appointed under, and includes the chairperson and the deputy chairperson;") shall not be present while that matter is being dealt with by the Board ("the Judges and Magistrates Vetting Board established by;") and shall not take part in any deliberations or vote relating to the matter.

Section 32. Conflict of interest Section A person who serves on the Board ("the Judges and Magistrates Vetting Board established by;") as the chairperson ("the chairperson of the Board appointed under;") , deputy chairperson ("the deputy chairperson of the Board elected under;") , member ("a member of the Board appointed under, and includes the chairperson and the deputy chairperson;") or secretary ("the secretary of the Board appointed under;") shall be precluded from being appointed as a judge or judicial officer for a period of five years from the close of the vetting ("the process by which the suitability of a serving judge or magistrate to continue serving in the Judiciary is determined in accordance with this Act") process.

Section 33. Inherent powers of theBoard Section 33(1) Subject to the provisions of this Act, the Board ("the Judges and Magistrates Vetting Board established by;") may regulate its own procedure and make regulations generally for the better carrying into effect the provisions of this Act. Section 33(2)(a) the conduct of the Board ("the Judges and Magistrates Vetting Board established by;") ’s operations and proceedings; Section 33(2)(b) the manner of receiving and processing complaints; Section 33(2)(c) any summary procedure the Board ("the Judges and Magistrates Vetting Board established by;") may adopt under sections 19 and 23; and Section 33(2)(d) the steps that may be taken by the Board ("the Judges and Magistrates Vetting Board established by;") before a determination. Section 33(3) The chairperson ("the chairperson of the Board appointed under;") may issue directions for the just, efficient and economical determination of proceedings in relation to the procedures provided for by the regulations made under subsection (1). Section 33(4) Nothing in this Act shall limit or otherwise affect the power of the Board ("the Judges and Magistrates Vetting Board established by;") conferr...