Vetting Board to appeal ruling at Supreme Court

The Judges and Magistrates Vetting Board has reacted with anger and disappointment to a court ruling that stopped the sacking of five judges they found unsuitable to continue serving in the judiciary. Read (LSK fury as courts bar judges' sacking)

And in a change from the courts jurisdictional hierarchy, the board said they will by-pass the Court of Appeal and file an appeal at the Supreme Court to contest the High Court’s ruling that they have jurisdiction to supervise the board and review their decisions.

Their decision to appeal the ruling has been supported the Attorney General.

"The Attorney General is of the view that the courts finding is contrary to the express provisions of Section 23 (2) of the Fifth Schedule of the Constitution which, unequivocally states that “a removal or the process leading to the removal of a judge from office by virtue of the Vetting of Judges and Magistrates Act shall not be subject to question, in, or review by, any court,” said the AG in a statement to the newsroom.

"The Attorney General will therefore on Friday 2nd November 2012, be supporting the application by the Law Society of Kenya seeking orders that the hearing of the petitions filed by the judges who underwent the vetting process be stayed pending the appeal," said the statement.

“Despite the respect we have for the Court of Appeal, we do not have the luxury of time to go before them since it will lead to unnecessary litigation. We will directly invoke the jurisdiction of the Supreme Court to determine whether the judiciary can interfere with our work,” said Sharad Rao, the board’s chairman.

He argued that allowing the courts to review its determinations would lead to interminable litigations, frustrate the speedy transition envisaged by the Constitution and freeze the judicial reforms.

Mr Rao added that if the court’s ruling would be allowed to stand, then a judiciary in which the public has confidence would not be in place by the time the country goes to election in March next year.

The frustration was evident from the international board members, with former Zambian Attorney-General Fredrick Chomba saying that there would be no need if the country called him from retirement to help restore confidence in the judiciary only for their efforts to be trampled by the High Court.

“What is happening is so frustrating. I am not going to stay here forever but if all the judges we find unsuitable go to court, there will be unending cases. They need to know that we would like to go back home and continue with our retirement,” said Justice Chomba.

His comments were echoed by Prof Albie Sachs who said he was surprised why the High Court judges don’t want to support the work they are doing.

He accused the judges they had found unsuitable of being insincere, saying that there is no way they can claim bias yet they had never met before and the only issues they decided upon were the complaints raised by members of the public.

On Tuesday, a unanimous decision by a five judge bench comprising of Jonathan Havelock, Eric Ogolla, Pauline Nyamweya, Alfred Mabeya and Joseph Mutava, they ruled that the president should not degazette Justices Riaga Omollo, Samuel Bosire, Joseph Nyamu and Emmanuel O’Kubasu as judges of the Court of Appeal until their petitions challenging the findings on their suitability are heard and determined.

“Regarding Judges whose vetting process has already been determined, we recognise that they would suffer irreparable loss and damage should their degazettement as judges be effected before the suits are heard and determined. We therefore order that the affected judges shall not be de-gazetted until the cases are finalised,” ruled the judges.

High Court also noted that it has jurisdiction over the operations of the Board.