The decision of the High Court allowing five judges to challenge their own removal from office by the Vetting of Judges and Magistrates Board demonstrates the delicate state of judicial reforms in the country.
The vetting board, established under a requirement of the new constitution, has power to inquire into the suitability of judges who were in office when the new constitution came into force, with a view to determining if these are suitable to continue serving.
Though drastic, the constitutional requirement for the vetting of judges and magistrates was a compromise struck in the negotiations on the new constitution.
One extreme was occupied by those who demanded a wholesale dismissal of the entire Judiciary, regarded as historically compromised while, on the other extreme, were those that wanted the status quo in the judiciary to be maintained even under a new constitution.
As a concession between the two groups, the vetting process is supposed to look into the suitability of individual judges and magistrates to continue serving under a new constitutional order. Those found unsuitable are to be retired.
As part of this transition, the constitutional requirement for the incumbent Chief Justice, Evan Gicheru, to retire from office within six months, has already been implemented, paving way for the appointment of the new Chief Justice, Dr Willy Mutunga.
The most significant aspect of this week’s ruling is the finding that the High Court can entertain grievances by judges who have been removed by the vetting board, and who feel that their removal was unjustified. (READ: High Court decision raises weighty issues)
Because of this finding, the High Court ordered the suspension of the decision of the vetting board removing the judges in question, until these have been given a chance to challenge their removal before the High Court.
The main problem with the High Court decision is that it goes against a provision in the new constitution which protects the procedures and decisions of the vetting board from review by the courts.
The constitutional clause shielding the board from the judiciary is the result of the specific experience that Kenya has had in relation to the removal of judges: when, in 2003, the NARC government commenced the “radical surgery”, which led to the removal of 23 judges and 82 magistrates, mainly on grounds of corruption, a number of those affected by the removal instituted challenges against their removal in tribunals appointed by the President and, eventually, in the ordinary courts of law.
A feature of these cases is the very considerable delay that was experienced in bringing them to an end and the strain this caused to the judiciary.
Because a number of the judges who had opted to face the tribunals used this opportunity to posture to the larger public, the tribunals lost control of their own proceedings and remained in business, for periods of up to five years. By the time the last of them concluded its business, it had become a meaningless ritual as all life had moved on.
Up to now, a number of the judges whose removal the tribunals had ordered are still in court challenging the removal. Whatever views one has about the vetting board, it must be commended for the very quick manner in which it has gone about its business.
Even in the face of incessant stoppages of its work, through judicial challenges, it has managed, within one year, to conclude the bulk of its work and would have been done with all the judges by now if the latest stoppage had not occurred.
The effect of this week’s ruling is to subject the processes of the vetting board to the judiciary, something the drafters of the constitution thought they had avoided.
Typically, if a judge can challenge his removal in the High Court, such a challenge can be the subject of appeal first to the Court of Appeal and then to the Supreme Court.
If the vetting process was meant to be a quick fix to the judiciary’s problems, this will no longer be possible. Further, if the board was meant to have the last word on the suitability of judges to serve, this is also no longer the case as the courts will now also have a say on the matter.
A consequence of the ruling that needs to be emphasized is that so long as the judicial challenges remain in place, the board cannot wind up its business as it must remain in place to defend the cases or to carry out such further orders as may come from the courts.
Since the composition of the board includes foreign judges who must return to their countries at some point, this situation raises difficulties of a first impression.
Unless the orders of the High Court are overturned on appeal, they would have brought the reform process as signified by the vetting process to much uncertainty as it is no longer possible to predict whether, in fact, any of the decisions of the board will ever prevail.
Further, time, an element of the vetting process, is now completely subject to the vagaries of litigation this will almost invariably follow all decisions to remove a judge.