LSK fury as courts bar judges' sacking

Lawyers have reacted angrily to a contentious ruling that gave courts power to monitor the vetting of judges and magistrates and also stopped the President from sacking those found unfit for office.

The Law Society of Kenya (LSK) termed the ruling by a five-judge bench unfortunate and a backward step in the efforts to clean up the Judiciary.

LSK chairman Eric Mutua said it set a bad precedent because other judges who will be declared unsuitable to hold office will rush to court for reinstatement.

“The ruling was like telling the board to continue with their work but the ultimate power will rest with the court on who to retain and who to send home,” said Mr Mutua.

He said the LSK would appeal the ruling and convene a council meeting to advise its members against appearing before any judge who had been found unsuitable to continue serving in the Judiciary.

The ruling gave Appellate judges Riaga Omollo, Samuel Bosire, Joseph Nyamu and Emmanuel O’Kubasu and Justice Jean Gacheche (High Court) a lifeline after they were found unfit for office by the Judges and Magistrates Vetting Board two months ago. (READ: High Court temporarily halts suspension of judges)

“Regarding judges whose vetting process has already been determined, we recognise that they would suffer irreparable loss and damage should their de-gazettement 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 finalized,” ruled Justices Jonathan Havelock, Joseph Mutava, Erick Ogolla, Alfred Mabeya and Pauline Nyamweya.

The ruling has drawn mixed reactions, with some analysts warning that it could scuttle the vetting process which was meant to end in February next year.

It also casts the spotlight on the President, for not degazetting the judges almost three months after they were sent packing by the board chaired by Sharad Rao.

Constitutionally, the President is mandated to revoke the appointment of senior judicial officers through a gazette notice.

At the same time, the court lifted the orders stopping the vetting process issued early this month and dismissed an application by the LSK questioning its authority to supervise the vetting board.

They ruled that there must be separation of power even in the exercise of judicial authority and that it was wrong to insinuate that the vetting board could handle the constitutional violations raised by the suspended judges.

“The board cannot determine matters which deal with its jurisdiction. The constitution confers sovereign powers to the people and which they donated to the judiciary to supervise the activities of other tribunals like the vetting board.”

The judges challenged Parliament to enact appropriate laws to end the confusion on powers of the court and tribunals.

They said the vetting board was a creation of Parliament and cannot be equated to constitutional bodies like the High Court and Supreme Court.