AG, House join fight to save court reforms

The Judges and Magistrates Vetting Board will go to the Supreme Court in the fight to keep the clean-up of the Judiciary alive.

On Tuesday, the High Court declared that it had jurisdiction over the vetting process and blocked the sacking of five judges vetted and found unsuitable for the Bench.

The ruling has been widely criticised. (READ: LSK fury as courts bar judges' sacking)

The vetting board and the Attorney General said they will immediately appeal against the ruling. They will also support Friday’s application by the Law Society of Kenya to have the ruling stayed pending the hearing of the appeal.

The Board said it will by-pass the Court of Appeal and go directly to the Supreme Court to contest the ruling which gave the High Court jurisdiction to supervise and review their decisions.

“Despite the respect we have for the Court of Appeal, we do not have the luxury of time to go before it since it will lead to unnecessary litigation and delays.

"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.

Attorney General Githu Muigai said the court’s finding was contrary to provisions of Section 23 (2) of the Fifth Schedule of the Constitution which 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 or review by any court.”

Mr Rao said it was unfortunate for the judges to approach the High Court for a review of issues protected by the Constitution, adding that it is unfair and a waste of public resources to bring experts from other countries only to interfere with their work.

He questioned why the courts would curtail the board’s work even when it had the full backing of the Chief Justice, the Judicial Service Commission, LSK, the AG and Kenyans to clean up and restore their confidence in the judiciary.

According to the board, what the High Court really did was to reinstate the judges through the back door since the Vetting Act does not provide for the de-gazetting of a judge once found unsuitable. (READ: High Court temporarily halts suspension of judges)

He warned that if the ruling is not overturned, they will achieve nothing and the country will still have a Judiciary they don’t have confidence in by the time the elections are held next year.

Allowing the courts to review the board’s determinations would frustrate the speedy transition envisaged by the Constitution and freeze judicial reforms, Mr Rao added.

High Court Judges Jonathan Havelock, Joseph Mutava, Erick Ogolla, Alfred Mabeya and Pauline Nyamweya on Tuesday stopped the de-gazetting of five judges until petitions they filed challenging their dismissal are heard and determined.

It gave a reprieve to Court of Appeal Judges Riaga Omollo, Samuel Bosire, Joseph Nyamu and Emmanuel O’Kubassu and Jeanne Gacheche of the High Court whom the board had found unsuitable to continue serving in the judiciary.

The court ruled that they have authority to supervise the board and dismissed Section 23 of the Sixth Schedule which bars the court’s interference with the vetting process saying that the finality clause cannot be an obstacle to judges seeking justice on claims of rights violations.

The judges filed the petitions claiming that the board’s decision to sack them was a violation of their rights and should be declared null, void and unconstitutional.

Parliament’s Justice and Legal Affairs Committee said it would, as a last resort, “take the necessary steps to protect the vetting process” if the courts are used to interfere with it.

Committee members said the Constitution’s authors had intended to protect the vetting of judges from interference from either the Executive or the Judicial arm of government.

They said reviews and appeals in the courts would eventually make the process protracted, making it fail to realise the original purpose.

Committee vice chairman Njoroge Baiya said the High Court ruling could therefore be seen as an attack on the independence of the vetting process.

“The whole arrangement that had been negotiated was that rather than all the judges leaving at once with the enactment of the new Constitution, let them undergo vetting.”

Abdikadir Mohammed said as far as vetting is concerned, jurisdiction is with the board and not the courts.

He said it is important for the judges to realise that vetting needs to be concluded as fast as possible for the good of the reforming Judiciary.

“The vetting process is the last cog in the process of reforming of the Judiciary but as a good friend and as another arm of the Government we also understand that a friend has to tell you that sometimes you are wrong and we think that this time they are wrong,” said Mr Mohammed.

By subjecting the board’s decisions to the courts, he said, every dismissed judge could go to court and create a cycle of applications and appeals every time a decision is made.

He said the idea behind the vetting is to have a fully reformed Judiciary by the March 2013 General Election.

In case of a run-off in the presidential elections and with a changed Legislature, the Executive would be in limbo and stable third arm of Government would be needed to make firm decisions.

“If you go through the courts (the vetting process) will be there for the next 20 years and defeat the purpose by entangling the Judiciary in the vetting process,” said Mr Mohammed.

This story has been updated to include sentiment from Parliament.