BY BEVERLINE ONGARO
Among the various on-going transitional and institutional reforms within the Kenyan Constitutional framework, the judicial reforms have been in the spotlight and subject of public discourse among legal practitioners, stakeholders in the justice sector and the citizens at large. There is worldwide consensus that Judiciary is the vanguard and the sentinel of democracy and rule of law, and the protector of people’s rights and fundamental freedoms.
Even in failed democracies, people hang onto expectation that they can turn to Judiciary to take away the chalice of injustices imposed on them by dictatorial regimes. Therefore the limelight and the high expectations in the Kenyan milieu in so far as judicial reforms, aimed at having a highly competent trustworthy and people-responsive Judiciary, are not misplaced.
On November 5, 2014, the Supreme Court of Kenya rendered judgement in the case of Judges and Magistrates Vetting Board & 2 Others vs. The Centre for Human Rights Democracy & 11 Others, Petition No. 13A of 2013 which was consolidated with Petition No. 14 of 2013 and Petition No. 15 of 2013. The course of hearing and determining this petition illuminated the on-going reforms in the Judiciary, its expected outcomes and possible glitches, especially in regard to staffing the Judiciary with judicial officers who are competent and of integrity, following vetting of judicial officers by the Judges and Magistrates Vetting Board (JMVB).
The petition at the Supreme Court was filed by the appellants, JMVB & others as appeal from the decision of the Courts of Appeal of Kenya in Nairobi, No. 308 of 2012 delivered by Justices Kiage, Sichale, Murgor, J.Mohammed and Otieno- Odek on October 18, 2013. This Court of Appeal decision affirmed the Judicial Review decision of the High Court of Kenya in Nairobi, No. 295 of 2012, delivered by Justices Havelock, Mutava, Nyamweya, Ogola and Mabeya on October 20, 2012. The core issue for determination at the High Court and the Court of Appeal was whether in view of Section 23 (1) of the Sixth Schedule of the Constitution which provides that judges and magistrates that were in office at the time of promulgation of the Constitution shall be vetted to determine their suitability to continue in service in line with Constitutional values and principles stipulated in Articles 10 and 159, and also Section 23(2) of the Sixth Schedule of the Constitution which provides that the vetting process shall not be subject to ‘question in or review by, any court.’
In summary, the crux of the proceedings at both the High Court and the Court of Appeal was whether Section 23(2) of the Sixth Schedule of the Constitution, an ouster clause, removes the jurisdiction of the High Court to review the decisions of the JMVB. Both courts arrived at the conclusion that the JMVB is an inferior tribunal that is subject to the supervisory jurisdiction of the High Court conferred by Article 165(6) of the Constitution, particularly where there is an alleged violation of the right to fair trial safeguarded in Article 50 of the Constitution, which is further guaranteed by the Constitution’s Article 25 (c) as a non-derogable right.
The implication of these courts’ decisions is that judicial officers found to be unsuitable following the vetting process by the JVMB could challenge its decisions with the possibility of finding their way back into service in the Judiciary. This possibly caused high anxiety among stakeholders in the legal sector, especially legal practitioners, who have been keenly following the vetting process and held expectation that the JMVB will sanitise the Judiciary, and instil public confidence in the institution that had considerably waned.
Prof. Yash Pal Ghai, the former chairperson of the Constitution of Kenya Review Commission (CKRC) aptly captures the anxiety and loss of public confidence in (Yash Pal Ghai & Jill Cottrell Ghai, Kenya’s Constitution: An Instrument for Change, 2011:109), thus, “the courts have been a major disappointment to Kenyans. Judges have taken bribes, done the bidding of the government, regardless of the law, and twisted the law to benefit the rich or the powerful. Their legal reasoning has been weak, and there is hardly a Kenyan decision which has been used in other countries”.
Prof Ghai further illuminates the background of how the decision to vet judicial officers was arrived at. “Of course, not every judge is weak, corrupt or subservient to the government. The dilemma for the CKRC and subsequent constitution-making bodies was how to build a strong judicial system when so many sitting judges were corrupt or incompetent. The CKRC proposed that every judge should be vetted for integrity and competence when the new constitution comes into effect, and removed if the judge failed the criteria. The necessary legislation must be in place within a year of promulgation.”
CKRC’s proposal found its way unscathed after protracted negotiations into the subsequent drafts of the constitution generated by the National Constitutional Conference (Bomas), the Parliamentary Select Committee and the Committee of Experts. The draft by the latter is what was promulgated on August 27, 2010 following a successful referendum. The JMVB was established, as the vetting institution envisaged in the transitional and consequential provision of Section 23 of the Constitution, after the Judges and Magistrates Vetting Board Act came into force on March 23, 2011. Subsequently, the Board extended its term on December 27, 2013 to operate till December 31, 2015.
This aforementioned background on vetting process and Para 11 of the Supreme Court’s judgement that captures the poignant arguments by the appellants at the Court of Appeal, gives us a glimpse of what propelled the JMVB to appeal at the court of the apex. Para 11 states “… the vetting was a popularly negotiated resolution in the constitution-making process, which had made a concession from a more radical, original stand, whereby all judges would resign upon the promulgation of the new Constitution. In this context, the proponents of the appeal argued that it was untenable for judges themselves to sit in review of decisions affecting their colleagues, due to potential conflicts of interest, and bias. Lastly, it was argued that the vetting process is a political process, vested in other arms of government, and therefore not amenable to judicial review, as it is not justiciable.”
The appellants echoed these arguments at the Supreme Court, and persuaded the Court to interpret the Constitution holistically, purposively and take into account the historical perspective of the desire to reform the Judiciary – to hold that Section 23 of the Sixth Schedule of the Constitution ousts the High Court from reviewing the decision of the JMVB. Conversely, the respondents urged the Court to hold that by virtue of Article 165 of the Constitution, which confers the High Court with supervisory jurisdiction, the High Court has jurisdiction over the JMBV which is an inferior tribunal. The respondents further urged the Court to find that Section 23 in the sixth schedule of the Constitution does not oust the jurisdiction of the High Court to review the decisions of JMVB where there is violation of the non-derogable right to fair trial.
The Supreme Court found that “the process of vetting for judges and magistrates is a requirement of the Constitution of Kenya, 2010; and that by a valid ouster clause, the main question which relates to the suitability of a judicial officer to continue in service under the new constitutional dispensation, is a matter reserved by law to the Judges and Magistrates Vetting Board … this the only tenable position in our perception.”
The decision of the majority of the Court’s bench by Justices, Prof Ojwang, Tunoi, Wanjala, held that, “or the avoidance of doubt, and in the terms of Section 23(2) of the Sixth Schedule to the Constitution, it is our finding that none of the Superior Courts has the jurisdiction to review the process or outcome attendant upon the operation of the Judges and Magistrates Vetting Board by virtue of the Constitution, and the Vetting of Judges and Magistrates Act.” This decision gave a shot in the arm to the on-going judicial reforms process in form of the vetting of judicial officers as envisaged in the Constitution. The decision was concurred with separately by the Chief Justice and the President of the Supreme Court Dr Willy Mutunga, the Deputy Chief Justice and the Vice-President of the Supreme Court Kalpana Rawal and Justice Njoki Ndungu.
In arriving at its decision the Court used various texts to interpret the Constitution, an approach that it is steadily gaining currency, which is a prevalent practice in the American jurisdiction. Given Kenya’s common law heritage, the courts have stringently adhered to the texts in the Constitution and statutes, precedents and common law in interpreting law and determining cases. It is worth examining these texts the Supreme Court used and what it portends for various actors and stakeholders’ in the legal sector and those concerned with the Kenyan on going reforms process at large- salient point, possible challenges and cautions.
Firstly, the Court in arriving at its decisions, referred to reports preceding the Constitution, namely, The People’s Choice: The Report of the Constitution of Kenya Review Commission (September 2002), the Committee of the Experts Final Report of the Committee of Experts, (2010), and the recommendations of the Task Force on Judicial Reforms, 2009. These reports articulate the roadmap of sanitizing the Judiciary through vetting of all its judicial officers, as transition from the old constitutional order into the new constitutional dispensation.
The reference to reports, on one hand, has reinforced that courts may be invited to look into various reports generated by Task Forces and Commissions to contextualise the Constitution. Therefore it could herald the ushering in of an era when finally the ‘hot-potato’ issues – such as prevention, prosecution and punishment for extra-judicial killings; implementation of the Truth, Justice and Reconciliation Commission Report (2011); and implementation of the Report by the Kenya National Commission on Human Rights on Sexual and Reproductive Rights (2012) that urges the government to protect, respect and fulfil the reproductive rights of the sexual minorities – are addressed and redressed. On the other hand, the court is likely to be requested to consider reports to justify a limitation of right and fundamental freedom, or narrowly or conservatively construe rights and fundamental freedoms. These two possibilities may call for the courts to determine under what circumstances it will adopt judicial self-restrain in respect of considering reports, so that the courts do not seem to accept or reject reports at will.
Overall, the Court’s reference to reports can serve as a positive signal, to citizenry, to reinforce the important place that Task Forces and Commission hold in catalysing reform processes and therefore embolden them to participate in such processes by Task Forces and Commissions when invited to. This is especially critical at the current moment in time when the civil society organisations are being christened by some government sycophants as an evil axis or an evil society, in a bid to silence them.
Secondly, the majority of the bench and the Chief Justice in his concurring judgement made reference to the dissenting opinion of the Justices Murgor and Sichale to reinforce that the Constitution should be interpreted in holistic manner, taking into consideration the historical context. The Chief Justice reinforced this view articulated in the Supreme Court’s recent decisions of Communications Commission of Kenya & 5 others v. Royal Media Services Ltd. & 5 others, Sup. Ct. Petition No. 14 of 2014; [2014] eKLR, the Kenya National Commission on Human Rights, Advisory opinion No.1 of 2012[2014]eKLR and In the matter of Principle of Gender Representation in the National Assembly and the Senate, Supreme Court Application No. 2 of 2012[2012]eKLR. It will only be a matter of time, whether the courts will rise to the occasion when confronted with, for example systematic historical land, economic and gender injustices. On one hand, drawing from historical context provides a basis for future litigants to invite the courts to consider Kenya’s historical milieu while determining disputes centred on persistent injustices, especially those afflicting the marginalised and minority groups, in order to award adequate remedies.
Litigants may request the courts to examine Kenya’s historical context to limit rights and fundamental freedoms. The latter scenario may cause discomfort to human rights advocates. But the questions which ensues is if it is possible to examine historical injustices in the former scenario, it follows it should be possible in the latter scenario, unless there are established standards and parameters. Gratifying, the Court’s reference to dissenting opinions of the inferior courts reinforces and validates the place of such opinions in contributing to the formation of emerging jurisprudence. It remains to be seen how dissenting opinions will contribute to development of jurisprudence. A case in point is the dissenting opinion of the Chief Justice in the Gender Representation Advisory Opinion that is pending application to address the gender disparity in political representation.
Thirdly, the Court referred to articles and journals by academicians. Of these there was only one, by Prof Gathii, that the Court could lay hand on from the Kenyan academia. Kenyan academia is one of the fiercest critics of the Judiciary yet they remain a minuscule in generating articles that enrich the courts in evolving jurisprudence. Therefore a challenge arises for the Kenyan academicians to generate scholarly articles and journals that will aid the court in sustaining, nurturing and contributing to emerging jurisprudence by the Courts. This will no doubt contribute to the judiciary realising its obligation to foster emerging jurisprudence as it is enjoined to do, by the Constitution and the Judiciary Transformation Framework 2012-2016.
Fourthly, Justice Ndung’u referred to her experience as the constitutional drafter and the member of the Committee of Experts to conceptualise and explain the purpose of enshrining the vetting process in the Constitution. The judge sought to reinforce the historical perspective that had been articulated by the majority in the judgement. The Court’s approach in bringing in personal experience is gratifying where the Bench has rich pedigree on constitutional matters with an inclination to be liberal. But is objectionable where the Bench’s pedigree is that with inclination to be conservative. The American judicial experience provides insight on how dicey it can be when the judicial officers refer to their pre-Bench experiences in arriving at decisions: The point is, there ought to be caution in this respect.
Given the Supreme Court has opened this door it seems will be nothing to preclude the bench from bringing in their experience in a subjective manner unless the courts establish tests of when such experiences can be invoked, to attain objectivity and manifest impartiality.
In conclusion, the Supreme Court facilitated the safeguard of the judicial reforms envisaged in the Constitution and did that by applying various texts in the course of determining the JMVB petition. However, the Court’s approach has both pros and cons of which should be taken note of.