Vetting board’s pace and style impressive

The Judges and Magistrates Vetting Board headed by Sharad Rao has come of age.

First, it has finished the vetting of members of two courts, the Supreme Court and Court of Appeal, in a very short time.

Second, the board has navigated the legal and political environments in an admirable manner. Its reputation, despite the many assaults from diverse quarters, for the time being remains intact.

Last Friday the panel passed judgment on the last members of the Court of Appeal. In the last two months it has started vetting members of the High Court and a number of determinations are in the pipeline.

It must be appreciated that the matters before the board include very weighty legal and at times political and moral issues. These issues must be determined in a fair and objective manner.

The clarion call to the board must be a continuation of its initial mantra that there will be neither witch-hunt nor a whitewash.

The other important issue that touches on the vetting board is the political environment it operates under and the myriad jurisprudential minefields it navigates.

The board set the tone on both issues with its first determination on the four judges of the Court of Appeal.

It is that judgment that has cemented both the solidity and weight of the board’s legal thought process, independence and objectivity.

The Rao-led team faces the troubling issue of whether there is a genuine appeal process in the vetting procedure that satisfies both the constitutional threshold of a fair trial or the international human rights standards.

Judges who have lost the initial determination contend that the appeal process of the board is a complete farce. It is alleged that the same members who had determined the initial case sit on appeal, and the appeal process is summary in nature.

It is precisely because of this gaping black hole that the High Court has been menacingly shadowing the vetting tribunal.

Appeal process

This alleged absence of an appeal process was answered emphatically by the vetting board in the cases of Justice Mohamed Ibrahim and Justice Roselyn Nambuye.

Both judges, in their appeal, cited weighty issues that in a number of ways raised troubling issues for the vetting board.

Justice Ibrahim raised the issue of a member of the board who sent a text message to members of the Law Society of Kenya who objected to the ruling by the board.

Justice Nambuye raised the issue that the board didn’t objectively look into her issues as it related to pending judgments.

The board must be commended for the determination it made in the two cases. The board showed its independence by ignoring the loud protestation from the Law Society on the matter.

Second, the board has proved wrong those who assert that the appeal process is a circus. In both cases the tribunal recognised the errors and miscarriage of justice and set aside the two determinations.

Ibrahim’s and Nambuye’s cases pose a number of challenges and great opportunities for the tribunal.

With local and international legal luminaries, the board must ensure that the appeal process it creates ventilates through objective and discernible procedures all the issues raised against a given determination.

It has a historic opportunity to show the world that its appeal process allows it to interpret the law and facts in an expansive and purposive manner that, under the right circumstances, gives the tribunal space to overturn its initial findings.

Ahmednasir Abdullahi is the publisher, Nairobi Law Monthly. [email protected]