Judges vetting board reject court order to stop work

The panel set up to vet Kenyan judges suitability for office on Monday rejected a court order stopping its work for 14 days. Read (High Court halts vetting of judges and magistrates)

The Judges and Magistrates Vetting Board described High Court Judge Mohammed Warsame’s ruling as null, void and unconstitutional.

The board said the courts cannot be both players and referee in the matter of vetting judges and magistrates.

The Mr Sharad Rao led board said its work is protected in by the Constitution from any external interference including that from the courts.

“Section 23 (2) of the Sixth Schedule to the Constitution has expressly ousted the Courts jurisdiction as a way of insulating the vetting process against manipulation by the judiciary,” Mr Rao who read a statement on behalf of the board said.

Last week, the High Court stopped the vetting of judges and magistrates until a case challenging the removal of two judges from the Judiciary is determined.

The High Court issued interim orders stopping the vetting in a case filed by a human rights lobby and two petitioners to challenge the sacking of Supreme Court judge Mohammed Ibrahim and Court of Appeal judge Roselyn Nambuye.

Judges Mohammed Warsame and George Odunga granted the interim orders sought while Mr Justice George Kimondo dissented.

Justice Kimondo said the orders sought, if granted, were far-reaching and would bring to a complete halt operations of the Vetting Board.

He said it would be fair if all the parties in the case were heard before the orders were granted.

But colleagues Warsame and Odunga said they had issued the injunction so that the aggrieved party was not helpless.

"This is meant to give an interim protection so as not to expose others to preventable perils or risks by inaction or omission, " the judges said.

The petition was filed by the Centre for Human Rights and Democracy, Mr Richard Omanyala and Bishop Francis Oziova.

The judges said that the matters raised by the three petitioners needed further inquiry.

On Monday, the board said it does not accept that the judiciary has jurisdiction to sit in judgment over its work.

“We have been given a mandate by the people of Kenya, through the Constitution, to see the vetting process through to speedy conclusion. The clear provisions of the Constitution were designed to prevent precisely the situation which has arisen, namely, that members of the judiciary would seek to obstruct the very process in terms of which they were themselves to be vetted,” Mr Rao said.

Mr Rao regretted that Mr Justice Mohamed Warsame who was due to be interviewed by the board on October 16, issued a stay “which purported to paralyse all operations of the board for 14 days, severely interfering with the board’s work.”

The board said the order was issued despite a request that Justice Warsame recuse himself and that the court first determine the issue of whether it has jurisdiction to hear the matter at all.

“The order purporting to stay the work of the Board was accordingly issued without argument being heard from counsels who were present in court, and despite the manifest conflict of interest of one of the judges in the 2: 1 majority. In the board’s view, the stay order is null and void,” Mr Rao said.

The board said judges cannot be true to their oath to uphold the Constitution but purport to blow the whistle on a process commanded by the Constitution.

“They cannot be players and referees at the same time,” Mr Rao said.

The chairman said the vetting process is meant to help preserve a judiciary that the public believes will fearlessly uphold the rights of all in society, particularly those whose rights have most been disregarded in the past.

“It is to remove the taint of being seen as a judiciary that is corrupt, unduly favourable to those in power, obsessed with technicalities, incapable of dealing with cases with requisite promptness and generally unable or unwilling to administer justice in an appropriate manner,” Mr Rao said.

He said the vetting is to enable the many conscientious judges on the bench to hold their heads high in the knowledge that the public trusts them and believes in their capacity to do justice.

The board has since vetted all the judges of the Court of Appeal and 29 of High Court.

Sixteen more interviews remain to be completed and Mr Rao said the board had hoped to finish by October 25.

“However, this schedule will be disturbed by the recent decision by the court. However, the board wishes to state that it will not be deterred from completing its work and is considering all possible options as to how to do so expeditiously and complete its mandate.

Mr Rao said the board had written to Chief Justice Willy Mutunga to express its concerns and that he also met him on Monday.

He denied claims that Dr Mutunga was interfering with the board’s work.