Comment is free, but facts are sacred

It breaks my heart every time I see lawyers, activists and journalists –who, really, have no excuse for being ignorant on what is essentially public information – persist that the vetting of judges and magistrates should be public.

That they go ahead and accuse the Vetting of Judges and Magistrates Board of having a hidden agenda, for holding their proceedings in camera, is simply absurd and mean.

I have also seen and heard Mr Sharad Rao, the chairman of the Board, many times, come out to explain to the public that the law does not allow for public hearings.

But every time he makes that statement, he wakes up to screaming letters-to-the-editor, opinions, commentaries, press conferences and voices in all manner of platforms, all urging him to make the proceedings, public.

For starters, the Board is a creation of an Act of Parliament. That piece of legislation is the Vetting of Judges and Magistrates Act.

It has an explicit clause on how the proceedings of the Board will be conducted: “The hearing by the Board shall not be conducted in public, unless the concerned judge or magistrate requests a public hearing.”

So, if people want to see the judges and magistrates questioned in public, and they are serious about it, they should sit down, draft a petition to the Ministry of Justice Mutula Kilonzo, or the Attorney General Githu Muigai or even Parliament’s Justice and Legal Affairs Committee, seeking to have the clause in the law (clause 19(5)) amended, to make public hearings mandatory.

Then, the minister, AG or whichever MP, who thinks the matter is very crucial, will bring the amendment to the House.

Once in the House, the people can write to the Vice President, Mr Kalonzo Musyoka, as the chairman of the House Business Committee, to ensure that the Bill is tabled in the House and its legislation expedited.

The work will then move to convincing the lawmakers that the amendment to “make the proceedings public” is necessary in the first place. They didn’t find such an amendment necessary when they approved the Bill in the first place a year ago, so they’ll need a little cajoling, a lot of pushing and yes, even threats, now that this is an election year.

If they budge, that will open the doors for the change in law to be enacted. Kenyans should then hope that the President will agree with the MPs and grant his signature to the Bill.

I am fully aware that Kenyans want to know if the Chief Justice Willy Mutunga has a team of able men and women with him. They want to know the stuff that the judges and magistrates are made of. They want to know if the money that the board will be spending in the exercise is being spent wisely.

In my humble opinion, Kenyans are entitled to a public hearing—simply because we should know the kind of people who sit in our Judiciary.

And if the board is going to be assessing such stuff as “temperament”, “integrity”, “legal and life experience” and “history of courtesy”, it will only be fair that the public too benefits from the hearings. Of course, competence, presence of complaints and all other issues to judge the suitability of the judges and magistrates will be assessed.

But we cannot expect the Board, or even Mr Rao, to initiate the process of amending the law to allow for “public hearings”. In any case, the modus operandi that the Board has adopted in executing its mandate –that of simultaneous hearings by each of the three panels—may make it impossible for the public, which hopes for live coverage of the hearings, to benefit wholesomely.

It will be fair if we ask the MPs to amend the law and allow Mr Rao and his team to do its work. If we insist on public hearings, before the Board begins its work, we imply that we don’t trust that team of eminent persons that we gave the job to.

Mr Rao and his team have promised regular updates on the progress of the exercise. If anyone is resolute that the hearings have to be in public, then, the natural thing is to point fingers at the lawmakers. Let the Board do its work. It can work faster without the ignorant blather about public hearings. If the law is changed, I am sure Mr Rao and his team will change with the times.