Waiting for Godot

BY DAVID WANJALA

“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,” the Supreme Court, on November 5, 2014, ruled, effectively ending the carrier of some of the longest serving and senior most judges in Kenya.
The ruling, rendered from a consolidation of three appeals raised by the Law Society of Kenya (LSK), Attorney General and the Judges and Magistrates Vetting Board (JMVB) has shuttered any hope of career resuscitation of veteran Court of Appeal judges Riaga Omolo, Samuel Bosire  and Emmanuel O’Kubasu that JMVB had in 2012 found unsuitable to serve. Others include Joseph Nyamu and High Court justices Jeanne Gacheche, Mary Ang’awa, Murugi Mugo, Joyce Khaminwa, Grace Nzioka, Leonard Njagi and Muga Apondi.
The appeals came from the judgment of the Court of Appeal, which had affirmed the High Court’s ruling of October 2010 that Section 23 of the Sixth Schedule to the Constitution does not oust the High Court’s supervisory jurisdiction to review the decisions of the Vetting Board.
The High Court had also barred the de-gazettement of any judicial officer found unsuitable to serve, pending the completion of review causes lodged, effectively maintaining the affected judges on the payroll of the judiciary for the last three years since they were determined unsuitable to serve.
The High Court upheld its jurisdiction over the vetting process and then gave itself the power to intervene and review the process and decisions of the Vetting Board: To consider and adjudicate upon alleged breaches of fundamental rights and freedoms arising from the vetting exercise; to issue, review, uphold or vacate conservatory orders in connection with the vetting process and to determine any questions ancillary to or consequential upon the vetting process.

Technically, this purported jurisdiction, upheld by the Court of Appeal had the potential of rendering the entire vetting process futile just like in the Radical Surgery attempted in the early days of President Mwai Kibaki’s reign.
Indeed in her dissenting opinion in the appellate court, Justice Agnes Murgor held that the transitional provisions were to take precedence at the transitional stage of the Constitution, and the ouster clause was inserted precisely to ensure that the provisions on the supervisory jurisdiction of the High Court, and the enforcement of fundamental rights, were suspended, to allow for the full exercise of transitional mechanisms such as the Vetting Board.
Justice Murgor argued that the fundamental rights were catered for by the Vetting of Judges and Magistrates Act, which took into consideration the ouster, and provided for the right to fair trial within its framework, including guidelines on the vetting process, and on internal review mechanisms and that “the differing stand, as taken by the majority (in the Court of Appeal), would result in Judges judging their own causes, and one Judge protecting another – which was untenable as a matter of law.”
The Supreme Court in its finding said the judges of the superior courts did not appreciate the historical background behind the vetting of judges that necessitated the shielding of the vetting exercise from judicial intervention.
“During the process of formulating a new Constitution, it became clear that the public’s confidence in the Judiciary was severely eroded. The Kenyan people wanted all the sitting Judges and Magistrates who were in office on or before 27th August 2010 retired. The public’s concerns had to be addressed, and a compromise was reached, which called for the vetting of sitting Judges and Magistrates,” said Chief Justice Willy Mutunga in his concurring opinion of the ruling.
“We find that neither the High Court’s Ruling of 30th October, 2012 nor the Court of Appeal’s decision of 18th December, 2013 achieved clarity as to the relationship between the Courts’ jurisdiction, on the one hand, and the jurisdiction of the Judges and Magistrates Vetting Board, on the other hand. We would clarify that by the terms of the Constitution itself, the High Court’s general supervisory powers over quasi-judicial agencies, and its mandate in the safeguarding of the fundamental rights and freedoms of the Constitution, by no means qualify the ouster clause which reserves to the Judges and Magistrates Vetting Board the exclusive mandate of determining the suitability of a Judge or Magistrate in service as at the date of promulgation of the Constitution, to continue in service.
“The basis of the said ouster clause is found in the history attending the Constitution; in the requirement of the Constitution for essential transitional arrangements; and in the express terms of the Constitution, by virtue of which the Vetting Board was established to determine the suitability of certain judicial officers, for the purposes of the values and principles declared in the Constitution itself,” the Supreme Court ruling reads in part.
Consequently, the Supreme Court discharged the High Court orders of October 30 2010 stopping the de-gazettement of judges and magistrates found unsuitable to continue in service. It also ordered the respective Superior Court Divisions to list for mention any pending issues in relation to the petition within 15 days and dispose of them forthwith.
It is done and dusted. This is where the road ends. There can never be any other way out for the afore-mentioned judges. Did it, however, have to come this far? Was there not any other way to it for the judges some of whom; Riaga Omollo, Samuel Bosire and Emmanuel O’Kubasu, for instance, had served in the Judiciary for more than three decades? Justice Omollo, at the time the wave of change began sweeping across the Judiciary and prior to the establishment of the Supreme Court, was the senior most judge, being the president of the Court of Appeal.
Signs that it was not going to be business as usual for most of the veteran judges and other office holders in the justice system emerged when the public successfully resisted President Kibaki’s unilateral attempt to appoint Court of Appeal Justice Alnashir Visram as Chief Justice in January 2011.
The biggest hint that all was not well for the old order, however, should have come from the interviews, in May 2011, with the Judicial Service Commission (JSC) for the positions of Chief Justice (CJ) and Deputy Chief Justice (DCJ). At least four of the judges, Omollo, Bosire, Nyamu and Ang’awa were unsuccessful in their bid for these positions.
Justice Omollo, for example, was rejected generally for lack of independence and impartiality. He was accused, among others, of maturing in his career at a time the Judiciary was suffocating and tightly controlled and for churning out hostile jurisprudence against the poor. He was also accused of either twisting logic and statute or misapplying precedent to serve political interests of the then President Moi administration in the two presidential election petitions of 1992 and 1997. Of concern was his role in the Court of Appeal’s decision that Kenneth Matiba, having become paralysed following his detention by the state, could not authorize his wife to sign the 1992 petition on his behalf.
For Justice Bosire, it was, among others, his role as chair of the Goldenberg Commission, particularly his refusal to summon key witnesses including retired President Moi to appear before the commission despite a court order requiring him to do so and issues of integrity especially relating to wealth accumulation that did him in. Justice Nyamu’s tenure as head of the Constitutional and Judicial Review Division where he was accused for serving as a gatekeeper for the powerful vested interest is what stood between him and the position of chief Justice. His rulings, which seemed to favour prominent political and business figures, were put into sharp focus.
In short, these are the same reasons for which these judges lost out for the positions of Chief Justice and that of the Deputy Chief Justice and for the Supreme Court Justices. In fact, Justice Bosire was not even shortlisted for the interview for Justice of the Supreme Court despite putting in his application.
Justice O’Kubasu and Lady Justices Gacheche and Ang’awa also lost out on the Supreme Court slots where pertinent questions that should have informed them of their suitability or otherwise, to continue serving were raised.
Having fatally failed the promotion test came even the more adversarial and mandatory vetting exercise. All the grounds for which these judges failed in their quest to advance in their careers were relooked at, only this time round, with more keen, scrutinizing lenses and with devastating results and conclusions.
“One after the other, attempts by prosecuting authorities to hold business or political figures to account were frustrated by rulings given by the judge. Moreover, in each case, the rulings appeared to strain the law to such a manifest degree to produce impunity as inevitably to raise doubts in the public mind in relation to impartiality of the courts,” the vetting board’s report speaks of Justice Nyamu, for instance.
Referring to Matiba’s 1992 petition against President Moi, the vetting board decried Omollo’s concurring judgment.
“In addition to the concurrence reinforcing the main judgment’s defiance of common sense and closing down of space for democratic contestation, it gratuitously showed grave disrespect for disabled people, castigated the petitioner in an ungenerous and uncalled-for manner that manifested no sensitivity to the fact that he could well have been paralysed as a result of torture, and appeared to curry favour with incumbent President.”
It was same for Justice Bosire, appearing before the Vetting Board. “The defensive tone which he adopted was indicative of a resistance to acknowledging the moral and jurisprudential failures which had led to a plummeting degree of confidence in the Judiciary, which ceased to be looked on as an honest and impartial arbiter of people’s rights,” the board said of Bosire following his responses to questions relating to his failures in his over thirty years of service.
Members of the board were unanimous in concluding that Justices, Bosire and Nyamu were unsuitable to continue to serve in the judiciary. Justice Omollo was found unsuitable with two dissents. For O’Kubasu, it was not just his failure to maintain the propriety required of a judge from his conduct in relation to various cases, but also luck of candour when the board questioned him. He was found, with one dissent, to be unsuitable.
It did not end there. The Act establishing the vetting board, through section 22, provided for review on request, of the board’s determinations. These four, together with all the other judges whose fates the highest court on the land recently sealed, exercised this option.
For Omollo, Nyamu and O’Kubasu, their cases were clear cut that after consideration of their review requests, the board found no grounds to reconsider their fate. Only Bosire had sufficient grounds for a review but still the board reaffirmed its determination of unsuitability at the end of the review.
Rejection by the JSC of their quests to want to lead the judiciary as either Chief Justice or Deputy Chief Justice or to want to serve in the newly created court of last resort did not reveal to them that the end was near. Neither was the declaration that they were not suitable to continue to serve in the judiciary by the vetting board an indictment enough to prick their conscience to finally call it a day.
Never mind that it was for the same grounds that the JSC rejected their bids. Every existing option that could be called upon to save their careers was to be activated
For them, the courts were the next stop. Here they sought to overturn the JMVB’s decision by imploring the High Court to declare the vetting board’s mandate unconstitutional. They nearly succeeded. But the Law Society of Kenya, JMVB, the AG and other petitioners stood ground and stretched the petition all the way to the Supreme Court, the judges taking it all in a stride.
Why couldn’t Omollo, Bosire, Nyamu and O’Kubasu gracefully retire after their career advancement quests fell flat? Why were they willing to stay on even by taking less? They had, save for Nyamu, served for more than 30 years.
With former High Court justices Prof Jackton Ojwang and Mohammed Ibrahim having been promoted to the Supreme Court, and with the said court now becoming the apex with mandate to provide general leadership and churn out jurisprudence, why would Justices Omollo, Bosire and O’Kubasu be comfortable to cling on to serve under and take cue from their former juniors with no prospects, at all, of career advancement?