Anxiety as country awaits verdict on judges

BY WAHOME THUKU

When the sun sets on Wednesday, the Judiciary will never be the same again. For that could be the sunset of careers for some or all the Court of Appeal judges who have been vetted.

The Judges and Magistrates Vetting board will, on Wednesday, announce the names of those who will be leaving and those who will stay in. The nine are the judges who were in the Court of Appeal before the promulgation of the Constitution on August 27, 2010.

They are justices Philip Tunoi (now Supreme Court judge), Riaga Omolo the head of the Court of Appeal, and also a member of the Judicial Service Commission (JSC), Samuel Bosire, Erastus Githinji, Emmanuel O’Kubasu, Otieno Onyango, Alnashir Visram, Philip Waki, and Joseph Nyamu.

Justice Tunoi is the only Supreme Court judge who has so far been vetted because he was in the Court of Appeal before he was promoted last year.

To many legal professionals, these are the judges who have played the biggest role in shaping the face of the Judiciary. They are the minds behind some of the best and the worst decisions ever made by the courts. Each one of them has had his share of ups and downs as a judge.

Justice Omolo and Justice Bosire have spent their entire careers serving in the Judiciary, having joined as magistrates, and rising through the ranks.

It’s that career profile that could end unceremoniously or get a new lease of life.

The board chairman, Sharad Rao, said the nine judges, who were vetted between February 23 and March 26, would not get a one-line decision on whether they are fit to continue serving.

"Every judge will be given full reasons for the decision and allowed access to the record on which the determination was based," says Mr Rao a seasoned advocate.

"The judge will receive a well analysed and comprehensive determination, including those who would be found to be fit to continue serving". The judges will first be informed of their fate before the public announcement.

For Justice Waki, this is the second time that he is waiting with abated breath for a determination of his fate as a judge. The first attempt to remove him from the Judiciary in 2003 flopped, when he faced a tribunal set up to investigate corruptions allegations against him. The tribunal cleared him of all the allegations and he was reinstated.

Waki became a household name after he chaired a commission that investigated the 2007-2008 post-election violence. Then commission identified several suspects, among them, the four now facing charges at the International Criminal Court.

Most of the judges have been on vacation since early this month, and for some their last day in office may as well have come and gone when they closed their chambers for vacation.

Rao is, however, quick to dispel the perception that the board is carrying out a purge on the judges.

"Vetting is a special process of its own kind," he says. "It cannot be equated with impeachment, disciplinary hearing, criminal or civil trial, job interview or security clearance." But removal of even one judge from the Court of Appeal will certainly have its impact on the work programme of the Judiciary.

Court of Appeal judges go on circuits holding special sessions in various stations across the country.

Some of them have work schedules running up to the end of the year. The Court of Appeal cause list indicates some of the cases pending before them, dating back to 2007. These could take more years in court if judges handling them are removed.

The vetting board has, however, warned public expectations may not come to reality because not many people volunteered information on the judges. Lawyers, civil society organisations, and professionals who had for years been campaigning for vetting did not turned up to give information.

Even with the formation of the Supreme Court, the Court of Appeal remains largely the final forum of arbitration on non-constitutional matters. Its decisions set the law and the precedence for all the lowercourts.

It’s for this reason the court is perceived as being the most corrupt in the Judiciary. But that reputation is saved by the fact that its judges make a three-Bench team when hearing cases.

"That could explain why there were no much complaints of corruption against them because if you have to bribe one you must bribe all," says Rao.

But the determination of the board will not be based on corruption, but the totality of the person as a judge, especially in the context of the new constitutional dispensation, the board says.

From Thursday, the board will embark on vetting all the judges who were serving in the High Court before August 27, 2010, including those who were promoted to the Court of Appeal last year.