November 09, 2012
A number of Kenyan civil society groups have expressed discontent over what they see as a series of attempts by judges to derail legally mandated judicial reforms in the country.
On October 30th, the High Court overturned a decision by the Judges and Magistrates Vetting Board (JMVB) to sack five judges -- Court of Appeal judges Riaga Omolo, Samuel Bosire, Emmanuel O’Kubasu and Joseph Nyamu and Lady Justice Jeanne Gacheche of the High Court -- after the board found them unsuitable to serve in the judiciary.
JMVB Chairman Sharad Rao said the vetting board intends to appeal the ruling to the Supreme Court.
The board was created following the Vetting of Judges and Magistrates Act of 2011 to determine the suitability of judges and magistrates who were in office before the 2010 constitution was enacted. The board started its work in April and is expected to conclude the process by February 2013.
The JMVB looks at the past records of judges and magistrates, including their prior rulings, competence, diligence, and complaints from the public and professional bodies, to ascertain their suitability.
Jukwaa La Katiba, an association of lobby groups that tracks the implementation of the constitution, said the decision by the High Court's five-judge panel in favour of their colleagues was unconstitutional.
National Civil Society Congress (NCSC) president Morris Odhiambo, who also heads Jukwaa La Katiba, told Sabahi that by overruling the JMVB's decision, the High Court is misinterpreting the constitution.
According to Article 23 (2) of Section Six of the Constitution of Kenya, "A removal, or a process leading to the removal, of a judge from office by virtue of the operation of legislation contemplated under subsection (1) shall not be subject to question in, or review by, any court."
Nonetheless, the High Court claimed jurisdiction over reviews of the dismissal proceedings, thereby giving judges the power to monitor their own vetting processes.
Reverend Timothy Njoya, an activist representing Kenya's clergy, said the ruling sets a disturbing precedent and encourages judges and magistrates who are declared unfit for office to contest decisions in court.
"There is no doubt that the process is safeguarded against interference by the courts," he told Sabahi. "We are not sure which constitution the [High Court] is interpreting."
"Judges are fast becoming a hindrance to judicial reforms," he said. "Interference by judges has left the public confused as to the role of the courts in the vetting process. The stink of self-interest, conflict of interest, subterfuge and sabotage is everywhere."
The Law Society of Kenya (LSK), the country's top bar association, also raised concerns over the panel's ruling.
"We call on all lawyers as well as members of the public to reject appearing before judges and magistrates [rejected by the JMVB] in protest so we can pressure that the constitution is respected," LSK Chairman Eric Mutua told Sabahi.
"The rulings and judgments written and delivered by or on behalf of judicial officers, after the determination of their unsuitability, are not only null and void but also unconstitutional," Mutua said.
He said the LSK will launch a nationwide campaign to collect a million signatures from the public to petition parliament to change the constitution and have all sitting judges and magistrates reapply for their jobs.
"This was the initial desire of Kenyans, but a compromise was reached to allow the officers to continue serving while being vetted for eligibility and those whose background is found wanting kicked out as part of major reforms to the judiciary. But it seems now they have found a way to beat the process by seeking orders to bar their ejection, which is why an amendment to the law is now necessary," he said.
Mutua said this was not the first time the court has interfered with the process. On September 27th, High Court Judge Mohamed Warsame delivered a ruling suspending the vetting exercise, even though the JMVB's activities are protected under Article 23 (2) of Section Six of the constitution.
He said the LSK believes that the ruling was part of a series of events aimed at scuttling the vetting process.
Nonetheless, the panel of judges who issued the October 30th ruling -- Jonathan Havelock, Pauline Nyamweya, Alfred Mabeya, Joseph Mutava and Eric Ogola -- said the LSK and other interested parties have failed to prove how they will suffer from the panel's decision to overturn the JMVB findings.
Stephen Mwenesi, a lawyer representing judges O'Kubasu and Gacheche, questioned how the dismissals served the public interest.
"The applicant (LSK) has shown openly that it is acting as proxy for the vetting board, whose members have publicly and through local and international media shown and expressed open disrespect and contempt for the court and saw no course on their behalf ought to be advanced in the court," Mwenesi said, according to Kenya's The Star.
Lawyers representing the judges said the dismissed judges have rights as well, and should be granted an appeal process.
If the JMVB is able to dismiss judges because it disagrees with some of their rulings, the JMVB is essentially acting as an appellate court, they said, adding the JMVB should not have the final say on judicial matters.
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