Justice Albie Sachs Discusses his Role “Judging the Judges After Transition” in Kenya

On 16 April 2013, Constitutional Transitions had the privilege of hosting Albie Sachs for a lecture on his experience vetting judges in Kenya as part of that country’s transition away from the post-election crisis of 2007-8. Sachs, who served until recently as a Justice on the Constitutional Court of South Africa, undertook these responsibilities as a member on Kenya’s Judges and Magistrates Vetting Board. Following his presentation, Professors Sujit Choudhry and Barry Friedman joined Sachs for a panel discussion. Video of the event is available here.

The Vetting Board was established in 2011, and is provided for by the Sixth Schedule of Kenya’s 2010 Constitution. The 2010 Constitution was drafted in the aftermath of severe violence that followed the disputed 2007 presidential election, leaving more than 1,000 people dead and 500,000 displaced. One important grievance that fueled the violence was concern from the opposition regarding the courts’ inability to prevent election fraud and protect electoral competition. The creation of the Vetting Board was an important part of the post-election constitutional settlement. The Board is composed of six Kenyan citizens, three of whom shall be lawyers, and three distinguished foreign judges, including Sachs. The other two foreign judges are Frederick Chomba, former Justice of the Zambian Supreme Court, and Georgina Theodore Wood, Chief Justice of the Ghanaian Supreme Court.

Sachs explained that the role of the Vetting Board was to determine whether sitting judges were suitable to remain in office, based on criteria of impartiality, integrity, sound temperament, and “capacity to apply good sense.” Sachs detailed the Board’s methodology, including which judges would constitute a panel and what evidence would be presented. He also addressed several obstacles the Board faced, including the need to balance the time pressures of political transitions with the requirements of a thorough hearing, and the need to balance confidentiality with a public demand for transparency. Another challenge, Sachs explained, was that judges against whom orders for removal have been made have tried to challenge the Board’s findings in court, despite that no such right of appeal exists. Indeed, in some cases, judges would issue rulings to suspend investigations into their own conduct.

Despite the challenges, Sachs viewed the Board’s role as a success, specifically commending the influence of his fellow international judges on the Vetting Board’s determinations. “The proof,” he said in closing, “is in the pudding,” nodding to the largely peaceful Kenyan presidential election that took place in March 2013 and challenger Ralia Odinga’s decision to respect the Supreme Court’s authority in upholding his opponent’s victory.

Read more about Albie Sachs’s lecture here.

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