Supreme Court Justice’s seeming frustration with vetting as ‘stressful and unfair’ elicits mixed reactions from the bench and the bar
By NLM Writer
Judges are opposed to a new round of vetting, Supreme Court judge Justice Isaac Lenaola has said.
Speaking at the Judges’ colloquium held in Mombasa during the first week of April, Justice Lenaola said that judges have gone through enough vetting and should be spared the ‘distraction’.
Justice Lenaola said that members of the judiciary have bad memories of the previous vetting exercises and are not ready for new ones, in reference to the radical judicial surgery of 2003 and the vetting of judges and magistrates introduced by the 2010 Constitution. Lenaola posed, “For how long will the judges be vetted? We are tired of being vetted. The previous ones were stressful, intimidating and unfair”.
The vetting of judicial officers is based on the Constitution and was one of the landmark features of the Constitution voted for by Kenyans and promulgated in 2010.
The declaration by the Supreme Court judge was made when judges met members of the parliamentary justice and legal affairs committee led by MP Tom Kajwang and his Homa Bay Town counterpart Peter Kaluma.
Justice Lenaola’s warning that judges will not submit themselves to the process of collective accountability has sent shockwaves throughout the legal fraternity. Former president of the Law Society of Kenya, Nelson Havi, took to Twitter to express his dismay.
“Sentiments by some judges that they are tired of being vetted underscores resistance to accountability. Elected leaders are vetted after every five years. A judge who has served competently and with integrity should not fear being vetted. Judges and Magistrates vetting Bill 2022 needed,” Havi said in a tweet.
Lenaola’s statement comes in the backdrop of Azimio presidential candidate Raila Odinga’s promise that if elected to power in August, his administration will undertake a radical surgery of the judiciary in light of the runaway corruption in the courts. Deputy President William Ruto has not shared his blueprint for the Judiciary with Kenyans apart from promising to operationalize the Judiciary Fund and increase the institution’s budgetary allocation.
‘Tired, not afraid’
We reached out to Justice Lenaola for comment on his statement, and he said judges were tired, not afraid of vetting.
“I do not fear vetting. I will face vetting anywhere, any time, as I have done several times,” said Justice Lenaola.
“During their recent London tours, both former Mr. Odinga and DP Ruto were asked whether they’d appoint the six judges – High Court Justices Joel Ngugi, George Odunga, Aggrey Muchelule, and Weldon Korir to the Court of Appeal, and Registrar of the High Court Judith Omange and Chief Magistrate Evans Makori, who had been nominated to the Environment and Lands Court, and who President Kenyatta declined to appoint and gazette despite a court order – if they took power. While DP Ruto responded in the affirmative, Mr. Odinga deflected by talking about vetting. I asked the ODM MPs present at the colloquium if they shared their party leader’s views, and they said they did not. That was the context of my statement, which commentators have wrongly interpreted to mean ‘resistance’,” the judge said.
Judges and lawyers who spoke to the Nairobi Law Monthly and who have asked their names not be disclosed due to the sensitivity of the matter, expressed strong views on the subject. A senior lawyer practising in Nairobi said he was not surprised by Justice Lenaola’s sentiments.
“Considering the runaway corruption in the courts, I am not surprised by Lenaola’s statement. Considering the wealth and riches judges have amassed, particularly since CJ Mutunga retired, it does not surprise lawyers and other stakeholders in the justice system to hear such views.”
Another lawyer speaking from Mombasa said, “The sort of impunity advocated for by Justice Lenaola will be removed whether or not he likes it. Post-August 2022, it will not be business as usual.”
A long-serving judge who spoke to us on the condition that we don’t share his name said, “Justice Lenaola does not speak for the judiciary. Myself and many of my colleagues have consistently argued for lifestyle audit processes that assess our lifestyles so that we know who the bad apples are that continue to give us a bad name.”
Lenaola’s statement comes in the wake of sentiments by Kenyans that corruption in the judiciary is at its highest since independence and that graft in the courts, if not urgently addressed, will lead to the total collapse of the justice system.
Notably, many feel that because Justice Martha Koome so far has not substantively outlined how she intends to address judicial corruption, she probably does not see it as a problem or as one needing urgent attention.
The Judicial Service Commission has also failed to address corruption in the judiciary or even process the hundreds of complaints gathering dust on its shelves. Repeated calls from the lay public, lawyers, judges, and governance practitioners, including civil society, to the Office of the Chief Justice and the Judicial Service Commission, have not elicited any response.
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