Vetting Process

Overview

Arrangement of Sections

PART I – PRELIMINARY
PART II – ESTABLISHMENT, MEMBERSHIP, FUNCTIONS AND POWERS OF THE JUDGES AND MAGISTRATES VETTING BOARD
PART III – VETTING PROCEDURES
PART IV – GENERAL
Subsidiary Legislation

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THE VETTING OF JUDGES AND MAGISTRATES BILL, 2011
ARRANGEMENT OF CLAUSES
Clause
PART I—PRELIMINARY
1— Short title.
2—Interpretation.
3— Object and purpose of the Act.
4—Application.
5—Guiding principles.
PART II— ESTABLISHMENT, COMPOSITION, FUNCTIONS
AND POWERS OF  THE VETTING OF JUDGES AND
MAGISTRATES BOARD
6—Establishment of the Board.
7—Membership of the Board.
8—Qualifications for appointment.
9—Procedure for appointment of members.
10—Election of  deputy-chairperson.
11—Functions of  chairperson.
12—Tenure and vacancy of office of chairperson and members.
13—Functions of the Board.
14—Powers of the Board.
15— Joint secretaries and secretariat.
16— Assisting counsel and staff.
PART III —VETTING PROCEDURES
17—Panels.
18—Relevant considerations.
19—Vetting procedure.
20—Order of priority.
21—Preliminary findings.
22—Final determination.
23—Review.
PART IV—GENERAL
24—Time frame.
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25—Voluntary retirement and terminal benefits.
26—Allowances for members.
27—Annual estimates.
28 —Funds of the Board.
29—Accounts and audit.
30—Protection from personal liability.
31—Oaths  or affirmation of office.
32—Disclosure of personal interest.
33—Conflict of interest.
34—Inherent powers of the Board.
SCHEDULE—OATH/AFFIRMATION OF THE OFFICE OF
CHAIRPERSON/DEPUTY CHAIRPERSON
MEMBER/JOINT SECRETARY

 

 

 

The Vetting of Judges and Magistrates Bill, 2011  3
A Bill  for
AN ACT of Parliament to provide for the vetting of
judges and magistrates pursuant to section 23 of
the  Sixth  Schedule  to  the  Constitution;  to
provide  for  the  establishment,  powers  and
functions of the  Judges and Magistrates Vetting
Board, and for connected purposes
ENACTED by the Parliament of Kenya, as follows—
Short title.
1.  This Act may be cited as the Vetting of Judges and
Magistrates Act, 2011.
Interpretation.
2.   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
appointed under section 9;
“deputy chairperson” means the deputy chairperson of
the Board elected under section 10;
“effective date” means the 27th August, 2010;
“joint secretary” means  a joint secretary of the Board
appointed under section 15;
“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
magistrates;
“member” means a member of the Board appointed
under  section 9,  and includes  the  chairperson  and the
deputy chairperson;
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“Minister”  means  the  Minister  for  the  time  being
responsible  for matters  relating to the Judiciary;
“vetting” means 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.
Object and purpose of
Act.
3.  The object and purpose of this Act is to establish
mechanisms and procedures for the vetting of judges and
magistrates pursuant to the requirements of section 23 of
the Sixth Schedule to the Constitution.
Application.
4.  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.
Guiding principles.
5.  In the exercise of its powers or the performance of
its functions under this Act, the Board shall at all times, be
guided  by  the  principles  and  standards  of  judicial
independence,  natural  justice  and  international  best
practice.

 

 

 

PART II—ESTABLISHMENT, MEMBERSHIP,
FUNCTIONS AND POWERS OF  THE  JUDGES
AND MAGISTRATES VETTING  BOARD
Establishment of the
Board.
6. (1)There is established an independent board to be
known as the Judges and Magistrates Vetting  Board.
(2)  The  Board shall  be  a  body corporate  with
perpetual succession and a common seal and shall, in its
corporate name, be capable of -(a)    suing and being sued;
(b)  taking,  purchasing or  otherwise  acquiring,
holding,  charging  or  disposing of  movable
and immovable property; and
(c)   doing or performing all such other things or
acts for the proper discharge of its functions
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under  the Constitution and this Act as may
be  lawfully done  or  performed by a  body
corporate.
Cap.446.
(3)  The provisions of the State Corporations Act shall
not apply to the Board.
Membership of the
Board.
7. The  Board  shall  consist  of  nine  members,
comprising a chairperson, a deputy chairperson and seven
other members, of whom -(a)  six shall be citizens of Kenya appointed in
accordance with section 9(1) to (12) and of
whom three shall be lawyers; and
(b)      three  shall  be  non-citizens  of  Kenya
appointed in accordance with section 9(13).
Qualifications for
appointment.
8. (1) A person shall be qualified for appointment as a
member if such person-(a)  holds a degree from a university recognised in
Kenya;
(b)  has at least fifteen years’ distinguished postqualification experience in their field of study;
and
(c)  satisfies the requirements of Chapter Six of the
Constitution.
(2) A person shall not be qualified for appointment as
the chairperson or deputy chairperson 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.
(3) A person shall not be qualified for appointment as a
member if such person—
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(a)  is a member of—
(i)   Parliament; or
(ii)  a local authority; or
(iii) the executive organ of a political party; or
(b) was serving as a  judge or  magistrate in Kenya
on the effective date.
Procedure for
appointment of
members.
9.(1)  The  President,  in consultation with the  Prime
Minister and with the approval of the National Assembly,
shall appoint the nine members of the Board in accordance
with the procedure set out  in this section.
(2)  Within seven days of the commencement of this
Act, the President, in consultation with the Prime Minister
shall, by  notice in the Gazette, declare the  vacancies in the
Board under section 7(a) and call for applications.
(3)  An application in respect of a vacancy declared
under  subsection (2)  shall  be  forwarded to the  Public
Service  Commission  within  fourteen  days  of  the
publication of the  notice and may be made by -(a)  any qualified person; or
(b)  any person, organization or group of persons
proposing the nomination of any qualified
person.
(4)    The names of all applicants under subsection (3)
shall be published in the Gazette.
(5)  The Public Service Commission shall, within seven
days  of  the  expiry  of  the  period  prescribed  under
subsection (3), convene a selection Committee comprising
one representative each  of  the—
(a)  Cabinet Office;
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(b)  Office of the Prime Minister;
(c)   Ministry for the time being responsible for
matters relating to the Judiciary;
(d)  office of the Attorney-General;
(e)  Ministry for the time being responsible for
matters relating to the   public service;
(f)  Public Service Commission;
(g)  Judicial  Service  Commission,  not  being  a
serving judge or magistrate; and
(h)  Law Society of Kenya,
for  the  purpose  of  considering  the  applications,
interviewing and   selecting at  least  three    candidates
qualified for  appointment  as  chairperson and  eighteen
candidates, of whom at least six shall be lawyers, qualified
for appointment as members.
(6)  The Public Service Commission shall, within seven
days of the selection of  candidates under subsection (5),
forward the  names  of  the  selected candidates  to the
President and the Prime Minister for nomination.
(7)      The  President,  in consultation with the  Prime
Minister shall, within seven days  of receipt of the  names
of the selected candidates under subsection (6), nominate a
chairperson and five  other  persons  for  appointment  as
members  of  the  Board and forward the  names  to  the
National Assembly.
(8)  The National Assembly shall, within fourteen days
of  the  receipt  of  the  nominees  under  subsection (7),
consider all the nominations received  and may approve or
reject any  nomination.
(9)   Where the National Assembly –
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(a)      approves  the  nominees,  the  Speaker  shall,
within three days of the approval, forward the
names  of  the  approved  nominees  to  the
President for appointment;
(b)    rejects any nomination, the Speaker shall,
within  three  days  of  the  rejection,
communicate the decision to the President,
who in consultation with the Prime Minister,
shall submit a  fresh nominee  from amongst
the candidates selected and forwarded by the
Public Service Commission under subsection
(6).
(10)    If  the  National  Assembly rejects  all  or  any
subsequent  nominee  submitted  by  the  President  for
approval  under  subsection  (9),  the  provisions  of
subsections (1) to (8)  shall, with necessary modifications,
apply.
(11)    The  President  shall,  within  seven days  of  the
receipt  of  the  approved nominees  from  the  National
Assembly,    by  notice  in  the  Gazette,  appoint  the
chairperson  and  members  approved  by  the  National
Assembly.
(12) In selecting, nominating, approving or appointing
the chairperson and members of the Board, the selection
Committee, the National Assembly, the President and the
Prime  Minister  shall  ensure  that  the  Board reflects  the
regional and ethnic diversity of the people of Kenya and
not more than two-thirds of the members are of the same
gender.
(13)  The  President,  in consultation with the  Prime
Minister  and subject  to the  approval  of  the  National
Assembly shall, in respect of the vacancies in the Board
under section 7(b), appoint three distinguished non-citizen
serving or retired judges, each of whom has served as a
Chief  Justice  or  judge  of  a  superior  court  in  the
The Vetting of Judges and Magistrates Bill, 2011  9
Commonwealth, to be members of the Board.
(14) Nothing under this section shall be construed as
precluding the President, in consultation with the Prime
Minister, from nominating and forwarding names, other
than those submitted by the Public Service Commission, to
the National Assembly for consideration and approval.
Election of  deputy
chairperson.
10.(1) The chairperson shall, within seven days of the
appointment of the members, convene the first meeting of
the Board at which the members shall elect the deputy
chairperson of the Board from amongst their number.
(2)  The chairperson and the deputy chairperson shall
be of opposite gender.
Functions of
chairperson.
11.(1)  The chairperson shall—
(a)  preside over all meetings of the Board;
(b)  be the spokesperson  of  the Board; and
(c)  supervise and direct the work of the Board.
(2)  In the  absence  of  the  chairperson,  the  deputy
chairperson shall perform the functions of the chairperson
under subsection (1).
Tenure and vacancy
of office of
chairperson and
members.
12.  (1)  The  term  of  office  of  the  chairperson or  a
member 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.
(2) The office of the chairperson or a member shall
become vacant if the holder—
(a)  dies;
(b)    by a  notice  in writing addressed to the
President, resigns from office;
(c)   is  removed from  office  under  subsection
The Vetting of Judges and Magistrates Bill, 2011  10
(3);
(d)   is convicted of an offence and sentenced to
imprisonment for a term of six months or
more, without the option of a fine;
(e)   is unable to discharge the functions of his
office  by reason of  physical  or  mental
infirmity;
(f)  is absent from three consecutive meetings
of the Board  without good cause; or
(g)  is adjudged  bankrupt.
(3) The chairperson or a member may be removed from
office for misbehaviour or misconduct incompatible with
the functions of the Board.
(4) The President shall notify every resignation, vacancy
or   removal from office in the Gazette within seven days
thereof.
(5) Where a vacancy occurs in the membership of the
Board  under this section, the President shall nominate a
member  for  approval  by  the  National  Assembly  in
accordance with section 9.
(6) Notwithstanding the provisions of subsection (5), the
President may, for the purposes of filling a vacancy, select
a nominee from the list of candidates forwarded by the
Public Service Commission under section  9(6).
(7) A  member appointed to fill a vacancy under  this
section shall serve for the unexpired term of the member in
respect of whom the vacancy arose.
Function of  the
Board.
13. The function of the Board shall  be to vet judges and
magistrates  in accordance  with the  provisions  of  the
Constitution and  this Act.
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Powers of the
Board.
14.(1)  Subject to section 18, the Board shall have all the
powers necessary for the execution of its functions under
the Constitution and this Act, and without prejudice to the
generality of the foregoing, the Board shall have the power
to—
(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;
(b)   interview any individual, group or members
of  organizations  or  institutions  and,  at  the
Board’s  discretion,  to  conduct  such
interviews; and
(c)   hold  inquiries  for  the  purposes  of
performing its functions under this Act.
(2)  In the performance of its function, the Board—
(a)  may inform itself in such manner as it
thinks fit;
(b)  may receive on oath, written or oral
statements;
(c)   shall not be bound by strict rules of
evidence; and
(d)    shall not be subject to the direction or
control of any person or authority.
Joint secretaries and
secretariat.
15.(1) There shall be a secretariat of the Board which
shall  be  headed by two joint  secretaries    appointed in
accordance  with this  section,  of  whom  one  shall  be  a
lawyer.
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(2)  The  two joint  secretaries  shall  be  of  opposite
gender and shall be competitively recruited by Board.
(3) No person shall be qualified for appointment as a
joint secretary unless such person  -(a)  holds  at least a degree  from a university
recognised in Kenya;
(b)  has  at  least  ten  years’  post-qualification
experience;
(c)    has  demonstrated  competence  in  the
performance  of  administrative  duties  for
not less than five years; and
(d)    was not serving as a  judge or magistrate on
the effective date.
(4)  The joint secretaries shall be the administrators of
the secretariat and shall serve on a full-time basis.
(5)  The joint secretaries shall, among others things, be
responsible to the chairperson for—
(a)  the day to day administration of the affairs of
the Board;
(b)  the  co-ordination of  the  Board’s  studies,
reviews, research and evaluations;
(c)  the recording of the Board’s proceedings;
(d)  providing  the  Board  with  accurate
information on the  status  of  facilities  and
services required for the proper conduct of
the vetting process;
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(e)  securing the  maintenance  and provision of
facilities  and  services  required  for  the
discharge of the Board’s  functions;
(f)  providing the  Board with accurate  records
and information regarding the  judges  and
magistrates undergoing vetting;
(g)  maintaining accurate  records  on financial
matters and resource use;
(h)  ensuring the drawing up and approval of the
required budget;
(i)  the custody of all records and documents of
the Board; and
(j)  performing any other  duties  as  may be
assigned by the Board from time to time.
(5) Subject to the provisions of the Constitution or any
other  written law,  the  Board may delegate  such of  its
functions as are necessary for the day-to-day management
of its processes.
Assisting  counsel
and  staff.
16.(1) The staff of the Board shall comprise -(a)  such number of assisting counsel and staff as
the  Board may appoint  to assist  it  in the
discharge  of  its  functions  under  the
Constitution and this Act; and
(b)  such public officers as may, upon the request
of the Board, be seconded to the Board.
(2) A public officer who is seconded to the Board
under  subsection (1)  shall,  during the  secondment,  be
deemed to be an officer of the Board and subject to its
direction and control.
The Vetting of Judges and Magistrates Bill, 2011  14

 

 

 

 

PART III—VETTING PROCEDURES
Panels.
17.(1)  The  chairperson  may,  in  order  to  ensure
expeditious  disposal  of    matters,  constitute  three  panels
comprising  three  members  each,  which  shall  work
concurrently.
(2)  The  chairperson shall  ensure  that  each panel
constituted  under subsection (1) consists of at least a noncitizen serving or retired judge, a lawyer and a non-lawyer.
Relevant
considerations.
18.(1)  The Board shall, in determining the suitability
of a  judge or  magistrate, consider—
(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 from any person or body,
including   the -(i)      Law Society of Kenya;
(ii)     Kenya Anti-Corruption Commission;
(iii)    Disciplinary Committee;
(iv)     Advocates Complaints Commission;
The Vetting of Judges and Magistrates Bill, 2011  15
(v)     Attorney-General;
(vi)          Public  Complaints  Standing
Committee;
(vii)  Kenya  National  Human Rights  and
Equality Commission;
(viii)        National  Security  Intelligence
Service;
(ix)     Police; or
(x)     Judicial Service Commission.
(2)  In considering the matters  set out in subsection
(1)(a)  and (b),  the  Board shall  take  into account  the
following -(a)  professional competence, the elements of which
shall include –
(i)      intellectual capacity;
(ii)       legal judgment;
(iii)  diligence;
(iv)  substantive and procedural knowledge of
the law;
(v)  organizational and administrative  skills;
and
(vi)  the ability to work well with a variety of
people;
(b) written and oral communication skills, the elements
of which shall include—
(i)   the ability to communicate orally and in
writing;
(ii)   the  ability to discuss  factual  and  legal
issues in clear, logical and accurate legal
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writing; and
(iii)  effectiveness in communicating orally in a
way that  will  readily be  understood and
respected by people from all walks of life;
(c)  integrity, the elements of which shall include –
(i)  a  demonstrable    consistent  history  of
honesty  and  high  moral  character  in
professional and personal life;
(ii)  respect  for  professional  duties,  arising
under the codes of professional and judicial
conduct; and
(iii)   ability to understand the need to maintain
propriety and the appearance of propriety;
(d) fairness, the elements of which shall include –
(i)  a demonstrable ability to be impartial to all
persons and commitment to equal justice
under the law; and
(ii)    open-mindedness  and capacity to decide
issues according to the law, even when the
law conflicts with personal views;
(e) temperament, the elements of which shall include –
(i)  demonstrable  possession  of  compassion
and humility;
(ii)  history of courtesy and civility in dealing
with others;
(iii)  ability to maintain composure under stress;
and
(iv)      ability to control  anger  and  maintain
calmness and order;
(f)  good judgment, including common sense, elements
of which shall include  a sound balance between
abstract  knowledge  and practical  reality and  in
particular,  demonstrable  ability to make  prompt
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decisions that resolve difficult problems in a way
that makes practical sense within the constraints of
any applicable rules or governing principles;
(g) legal  and life  experience,  the  elements  of  which
shall include  –
(i)    the amount and breadth of legal experience
and the suitability of that experience for the
position,  including  trial  and  other
courtroom  experience  and administrative
skills; and
(ii)  broader  qualities  reflected  in  life
experiences,  such  as  the  diversity  of
personal and educational history, exposure
to persons of different ethnic and cultural
backgrounds, and demonstrable interests in
areas outside the legal field; and
(h) demonstrable  commitment  to  public  and
community service, the elements of  which shall
include the extent to which a judge or magistrate
has demonstrated a commitment to the community
generally and to improving access  to the  justice
system in particular.
Vetting procedure.
19.(1)  The Board shall consider information gathered
in the  course  of  personal  interviews  with the  affected
judges and magistrates as well as their records.
(2)    All  information obtained by the  Board during
personal interviews and records of the judge or magistrate
being vetted shall be confidential.
(3)   Every judge or magistrate to be vetted shall be
given sufficient notice.
(4) The notice referred to under subsection (3) shall
include a summary of complaints, if any, against the judge
or magistrate.
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(5) The hearing by the Board shall not be conducted in
public, unless the concerned  judge or magistrate requests a
public hearing.
(6)  The rules of natural justice  shall apply to the
Board’s proceedings.
(7)  A  judge or magistrate who submits to vetting
shall be entitled, at their own cost, to legal representation.
Order of priority.
20. 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.
Preliminary findings.
21. Upon finding, on the face of record, that a serving
judge  or    magistrate  should be  removed,  they  shall  be
required to immediately proceed on  compulsory leave.
Final determination.
22.(1)  The  Board  shall,  in  writing,  inform  the
concerned  judge or magistrate  of the final determination,
including the reasons for the determination.
(2)  Once informed of the decision under subsection
(1), the  judge or magistrate shall, subject to section 23, be
deemed to have been removed from service.
(3)  The decision to remove a  judge or magistrate
from service shall be made public.
Review.
23.(1) A  judge or  magistrate who has undergone the
vetting process and is dissatisfied with the determination of
the Board may request for a review by the same panel
within seven days  of    being informed of  the  final
determination under section 22(1).
(2) The Board shall not grant a request for review under
this section unless the request is based—
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(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 diligence; or
(b)     on some mistake or error apparent on the face
of the record.
(3)   The decision by the Board under this section shall
be final.

 

 

 

 

PART IV—GENERAL
Time frame.
24.(1) The vetting process once commenced shall not
exceed a  period of  one  year,  save  that  the  National
Assembly may, on the request of the Board, extend the
period for not more than one year.
(2)  Subject to subsection (1) -(a) the vetting of the Judges of the Court
of Appeal and the High Court shall be
finalised within three months;
(b) the  vetting of  magistrates  shall  be
finalised within six months; and
(c) all  the  requests  for  reviews  granted
under section 23 shall be considered
after  the  vetting of  all  judges  and
magistrates under paragraphs (a) and
(b) and shall be finalised within one
month.
(3)   Before the commencement of the period of one year
specified  in  subsection  (1),  the  Board  shall  have  a
preparatory period of two months during which it shall
The Vetting of Judges and Magistrates Bill, 2011  20
undertake all tasks necessary to ensure that it is able to
work effectively from the commencement of its operations.
(4)  The Board shall stand dissolved within thirty days
of the execution of its mandate upon which this Act shall
lapse.
(5)  During the period prescribed in subsection (4), the
Board shall  ensure  that  its  affairs  are  wound  up in an
orderly manner and, in particular, shall ensure that -(a)  those aspects of its work that will be of value
to  other  institutions  are  preserved,
documented and transferred to the relevant
institutions; and
(b)  its  files  and  records  are  preserved  and
transferred to the Kenya National Archives
and Documentation Service.
Voluntary retirement
and terminal benefits.
25.(1)  A    judge  or    magistrate  shall,  within three
months of the commencement of this Act, elect -(a)   whether to be subjected to the vetting process;
or
(b)  to leave the judicial service voluntarily.
(2)  A judge or magistrate who elects to leave the
judicial  service  voluntarily or  is  found unsuitable  after
vetting shall  be  entitled to terminal  benefits  for  early
retirement.
(3)  For the avoidance of doubt, a  judge or magistrate
who voluntarily leaves service or is found unsuitable after
vetting shall be deemed qualified for early retirement.
Allowances for
members.
26.    The  Board shall  pay to  its  members  such
allowances  for  expenses  as  may be  determined by the
Minister  in charge  of  finance,  in  consultation with the
committee of the National Assembly designated for that
The Vetting of Judges and Magistrates Bill, 2011  21
purposes.
Annual estimates.
27.(1)  The financial year of the Board shall be the
period of twelve months ending on the 30th June in each
year.
(2)  At least three months before the commencement of
each financial year, the Board shall cause estimates of the
expenditure of the Board for that year to be prepared and
submitted to the  Minister  who shall  present  them  for
consideration and approval by the National Assembly.
(3)  The annual estimates shall make provision for all
the estimated expenditure of the Board for that year.
Funds of the Board.
28.(1)      The  expenses  incurred by the  Board in
accordance with this Act shall be charged on and issued out
of  the  Consolidated Fund without  further  appropriation
than this Act.
(2)  Without prejudice to subsection (1), there may be
made  to the  Board grants,  gifts,  donations  or  bequests
towards  the  achievement  of  the  objects  of  the  vetting
process specified in section 3.
(3)      The  Board shall  not  accept  any grant,  gift,
donation or bequest made on any condition that the Board
performs any function or discharges any duty or obligation
other than duties under this Act.
Accounts and audit.
29.(1)  The Board shall cause to be kept proper books
and records of accounts of its income, expenditure, assets
and liabilities.
No.12 of 2003.
(2)  The annual accounts of the Board shall be prepared,
audited and reported upon in accordance with the Public
Audit Act, 2003.
Protection from
personal liability.
30.(1) No matter or thing done by a member of the
Board, or any officer, employee or agent of the Board shall,
if the matter or thing is done in good faith for executing the
The Vetting of Judges and Magistrates Bill, 2011  22
functions,  powers  or  duties  of  the  Board,  render  the
member, officer, employee or agent personally liable to any
action claim or demand whatsoever.
(2) The provisions of subsection (1) shall not relieve
the Board 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.
Oath  or affirmation
of office.
31.  The  chairperson,  the  deputy  chairperson,  the
members and the joint secretaries shall, before assuming
office, make and subscribe, before the Chief Justice, the
respective oath or affirmation prescribed in the  Schedule.
Disclosure of
personal interest.
32.(1)  A member of the Board who has a direct or
indirect personal interest in a matter being considered or to
be considered by the Board shall, as soon as reasonably
practicable after the relevant facts concerning the matter
have come to their knowledge, disclose the nature of the
interest to the Board.
(2)    A disclosure of any such interest in a matter shall
be recorded in the minutes of the meeting of the Board and
the member shall not be present while that matter is being
dealt with by the Board and shall not take part in any
deliberations or vote relating to the matter.
Conflict of interest.
33.    A  person who serves  on the  Board as  the
chairperson,  deputy  chairperson,  member  or  joint
secretary shall be precluded from being appointed as a
judge or judicial officer for a period of five years from the
close of the vetting process.
Inherent powers of
the Board.
34.(1)    Subject  to  the  provisions  of  this  Act,  the
Board  may  regulate  its  own  procedure  and  make
regulations generally for the better carrying into effect the
provisions of this Act.
(2)  Without prejudice to the generality of subsection
The Vetting of Judges and Magistrates Bill, 2011  23
(1), such regulations may provide for among others -(a)  the  conduct  of  the  Board’s  operations  and
proceedings;
(b)  the  manner  of  receiving  and  processing
complaints;
(c)  any summary procedure the Board may adopt
under sections 19, 21 and 24; and
(d)  the  steps  that  may be  taken by  the  Board
between a  preliminary finding and final
determination.
(3) The chairperson 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).
(4)   Nothing in this Act shall limit or otherwise affect
the power of the Board conferred by the Constitution or
under  this  Act,  either  on  its  own motion or  on the
application of a judge or magistrate, to make such orders as
may be necessary for the ends of justice or to prevent abuse
of the process of the Board.

 

 

 

 

SCHEDULE                                      (s. 31)
OATH/AFFIRMATION OF THE OFFICE OF
CHAIRPERSON/DEPUTY CHAIRPERSON/ MEMBER/ JOINT
SECRETARY
1  …………………………………… having  been  appointed  (the
The Vetting of Judges and Magistrates Bill, 2011  24
Chairperson/Deputy Chairperson/Member  of  /Joint  Secretary)  of  the
Judges and Magistrates Vetting Board under the Vetting of Judges and
Magistrates Act, 2011, do solemnly (swear/declare and affirm) that I will
at all times obey, respect and uphold the Constitution of Kenya and all
other laws of the Republic; that I will faithfully and fully, impartially and
to the best of my ability, discharge the trust and perform the functions and
exercise the powers devolving upon me by virtue of this appointment
without fear, favour, bias, affection, ill-will or prejudice.
(SO HELP ME GOD).
Sworn/Declared by the said …………………………………………
Before me this ……………… Day of ………………………………
………………………
Chief Justice.
––––––––––––––––––
MEMORANDUM OF OBJECTS AND REASONS
The  principal  object  of  this  Bill  is  to provide  a  comprehensive
mechanism,  pursuant  to section 23  of  the  Sixth Schedule  to  the
Constitution,   for the vetting of judges and magistrates who were in office
on the date  of the promulgation of the Constitution in order determine
their  suitability  to  continue  serving  in  the  judiciary  in  the  new
constitutional dispensation.
Part I of the Bill provides for the short title and commencement
date, interpretation of terms used and the scope of application. It also
articulates the purpose of vetting and the principles by which the Board
will be guided in discharging its mandate.
Part II provides for the establishment, composition, appointment,
functions    and powers  of  the  Judges  and Magistrates  Vetting Board.
Clause 6 thereof  confers  corporate status on the Board in order to secure
its operational autonomy in the execution of its mandate.  The Part also
provides for a secretariat, to be set up by the Board, which shall be headed
by two joint secretaries supported by the requisite staff.
Part III provides for the procedural matters relating to the vetting
process itself. Specifically, the requirement that panels of three members
The Vetting of Judges and Magistrates Bill, 2011  25
each sitting concurrently for expeditious disposal of the cases is provided
for. This Part also defines the relevant considerations and elements of the
rules of natural justice that the Board will have regard to. The order of
processing and issues  of  preliminary and final  determination are  also
addressed. In order to ensure that the ends of justice are served, the Part
also gives an internal mechanism for   review of decisions of a panel
where  the  Judge  or  Magistrate  whose  matter  is  under  review  is  not
satisfied with initial findings.
Part  IV  sets  out  the  general  provisions  which include  the
timeframe  for the vetting process and the requirement that  terminal
benefits be paid to those who elect to retire voluntarily or are found
unsuitable after the vetting. This Part also addresses issues of funds to
cater for the expenses of the Board  protection from personal liability, and
disclosure of personal interest by members, matters of conflict of interest
where certain persons are excluded from future judicial appointments and
finally the inherent powers of the Board.
The enactment of this Bill shall occasion additional expenditure of
public funds which shall be provided for through the estimates.
Dated the  27th January, 2011.
MUTULA KILONZO,
Minister for Justice, National Cohesion
and Constitutional Affairs.

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