Why vetting of judges, police has stalled

What you need to know:

  • The Attorney General, Judicial Service Commission and Law Society of Kenya are of the view that allowing sacked judges to challenge the board’s decision is unconstitutional.
  • “The Constitution has expressly stated that the board’s decision is final and not subject to any judicial review. All vetted judges accepted the process and we do not understand why they turned around to challenge it,” says lawyer Charles Kanjama.
  • Senior counsel Paul Muite, who represented the Judicial Service Commission (JSC) in some of the cases, argues that the courts erred in nullifying decisions of the vetting body. “Such actions will make people lose confidence in the Judiciary even more,” Mr Muite says.

After the 2007 post-election violence in Kenya, it was unanimously agreed that judges and police officers be vetted as part of the key reforms that would ensure the country did not disintegrate.

However, there is little to show for vetting in these two crucial institutions despite the millions of taxpayers’ money that has been committed into the exercise.

Lack of funds, court injunctions and corruption have been cited as some of the issues undermining the vetting of officers.

Vetting of nearly 200 magistrates has been put on hold until the Supreme Court makes a decision on a High Court and Court of Appeal rulings allowing judges found unsuitable to contest the decisions of the Judges and Magistrates Vetting Board.

Board chairman Sharad Rao says his team is apprehensive any decision of the court would render the whole exercise null and void, and make the gains made so far useless.

“The board has now been reduced to carrying out research and collecting information since the actual vetting cannot proceed with the dispute still pending at the Supreme Court,” Mr Rao says.

“If this matter was to be resolved within a reasonable time, then we would finish the clean up by December next year. However, if there is delay, we will have no option but to ask for more time,” said Mr Rao, adding: “If the judgment is in the board’s favour, the petitions pending before the High Court would be easily resolved.”

The Attorney General, Judicial Service Commission and Law Society of Kenya are of the view that allowing sacked judges to challenge the board’s decision is unconstitutional.

COURTS ERRED

Senior counsel Paul Muite, who represented the Judicial Service Commission (JSC) in some of the cases, argues that the courts erred in nullifying decisions of the vetting body. “Such actions will make people lose confidence in the Judiciary even more,” Mr Muite says.

“The Court of Appeal’s finding that the High Court has supervisory role over the board was null and void. The vetting board is not an inferior body, thus, you cannot allow the reopening of a closed door to suit interests of the sacked judges,” he says.

State counsel Mwangi Njoroge says the vetting is aimed at overhauling the Judiciary to ensure that services are in line with the Constitution and to restore public confidence in the delivery of justice.

“The board has a mandate to investigate the conduct of judges and even if the law appear to be harsh on those declared to be unsuitable, they are expected to accept and allow the clean-up to continue,” Mr Njoroge adds.

LSK argues if the country wanted the High Court to be the body to investigate the judges, then they would not have passed the 2010 Constitution to create the vetting board.

EXPRESSLY STATED

“The Constitution has expressly stated that the board’s decision is final and not subject to any judicial review. All vetted judges accepted the process and we do not understand why they turned around to challenge it,” says lawyer Charles Kanjama.

However, his colleague John Khaminwa defends the move to allow sacked judges to seek a review at the High Court, saying judges cannot sit back if their rights are being violated.

“It is true we have a sad history but it is not fair to single out some judges as the ones who contributed the most to the mess in the Judiciary. They also have a right to defend their rights and freedoms,” Mr Khaminwa argues.

Over 10 judges and several magistrates have been sent home after the board declared them unfit for office.

Among those sent home are former appellate judges Riaga Omollo, Samuel Bosire, Joseph Nyamu and Emmanuel O’Kubasu. Others are former High Court judges Jean Gacheche, Mary Ang’awa, Murugi Mugo and Muga Apondi.

For the vetting of the police, while the National Police Service Commission chairman, Mr Johnstone Kavulundi, says he is satisfied with the process, critics say there is nothing to show as intended results are yet to be achieved.

They have dismissed the process as devoid of serious interrogations and only good for rubber stamping and maintaining the status quo.

So far senior deputy commissioners, deputy commissioners, senior assistant commissioners and assistant commissioners have been vetted. Vetting of senior superintendents and superintendents is expected to conclude by end of the year.