Groups fight to revive judges’ vetting

• The Law Society of Kenya (LSK), Office of the Attorney-General, the Judicial Service Commission (JSC) and the Judges and Magistrates Vetting Board were united in questioning the authority of the High Court to interfere with the vetting, which had reached a critical stage.
• It was argued that the High Court will be in contempt of the Constitution if it stops the activities of the vetting board.
• The AG submitted that judges should recuse themselves and lift the orders since there will be no other way of reforming the Judiciary and restore public confidence if the process is stalled.

Four legal institutions have put up a spirited fight before a five-judge bench to have the vetting of judges and magistrate back on track.

The Law Society of Kenya (LSK), Office of the Attorney-General, the Judicial Service Commission (JSC) and the Judges and Magistrates Vetting Board were united in questioning the authority of the High Court to interfere with the vetting, which had reached a critical stage.

They asked judges Jonathan Havelock, Joseph Mutava, George Ogolla, Alfred Mabeya and Pauline Nyamweya to lift orders barring the vetting, and recuse themselves from hearing petitions that challenged the process.

“The Constitution contemplates that any decision by the vetting board is not subject to any court review. The High Court can only retain residual jurisdiction, it has no power to determine the work of other constitutional bodies,” said lawyer Paul Muite for the JSC.

The LSK, through lawyer Charles Kanjama, submitted that the court should ignore requests by the petitioners to continue listening to the various complaints they have raised against the vetting board.

Constitutional issues

Mr Kanjama said it was not right for the parties to conclude that only the High Court had powers to determine constitutional issues when it had been ruled that even the Industrial Court has powers to determine constitutional questions.

The court should be reluctant to intervene in matters which have been approved by a political process since it cannot have concurrent jurisdiction with other constitutionally-established bodies, he added.

He argued that the High Court will be in contempt of the Constitution if it stops the activities of the vetting board. (READ: Vetting board reject court order to stop work)

Mr Wilfred Nderitu, for the board, submitted that by issuing the orders stopping the process, the High Court misdirected itself by questioning the validity of the Constitution that created the vetting board.

“The reason for creating the board was to restore public confidence in the Judiciary and that is why its process of removing any judge cannot be the subject of any court proceedings,” he said.

The AG submitted that judges should recuse themselves and lift the orders since there will be no other way of reforming the Judiciary and restore public confidence if the process is stalled.

Judges Mohammed Warsame, George Odunga and George Kimondo last month stopped the work of the vetting board pending the hearing and determination of a suit filed by Lady Justice Jeanne Gacheche, who had been found by the board to be unfit to continue serving in the Judiciary.