FOUR senior judges are likely to fail their vetting and be on their way out of the judiciary in three weeks. The Judges and Magistrates Vetting Board has reportedly recommended their removal on integrity grounds mainly corruption. Among those about to be removed are judges who were recently promoted. Another five judges narrowly survived because the evidence presented before the Board was not watertight.
The board last week announced that it will release its report on the suitability of three Supreme Court judges and eight Court of Appeal judges on April 25. The Vetting Board, chaired by Sharad Rao, found the conduct of the four judges, some well known, wanting based on the criteria set out in Article 73 of the Constitution and Section 18 of the Vetting of Judges and Magistrates Act, 2011. These sections demand among other things that judges be competent, fair and be of high integrity.
The High Court judges whose vetting begins in three weeks will also have a hard time, according to the source. “It is going to be a massacre for the High Court judges,” said the source privy to the information so far gathered. The board yesterday published a print advertisement where secretary Reuben Chirchir said that it considers information about judges gathered from personal interviews, work records, and the public.
Chirchir gave a progress report and the schedule for the next phase of vetting for High Court judges. “The board also takes into consideration the professional competence, written and oral communication skills, integrity, fairness, temperament, good judgment, common sense, legal life experience and demonstrable commitment to public and community service,” Chirchir said in the notice.
One judge, the source said, has many pending cases which have caused the board to question his competence and integrity to continue serving as a judicial officer. Another judge is under question for his rulings, especially in cases that related to the past regimes. Others faced various accusations ranging from their legal competence, their temperament and the manner they handle advocates who appear before them.
The board started by vetting Justice Riaga Omolo on February 23 and then met Philip Tunoi, who has since been appointed to the Supreme Court, Joseph Nyamu, Erastus Githinji, Alnashir Visram, Emanuel Okubasu, Onyango Otieno and Philip Waki and finally Onyango Otieno on March 28. All the nine requested for closed-door interviews, which Rao last week said was within the Act. Civil society would have preferred public vetting.
According to Ndung'u Wainaina, head of the International Center for Policy and Conflict , the board's recommendations will consequently lack legitimacy. “The Chief Justice was subjected to a rigorous public interviews and so have the new judges who have been recruited to the since Kenyans promulgated the 2010 Constitution,” said Ndung'u. “Why should serving judges and magistrates be subjected to a secret exercise?” he wondered.
The vetting of High Court justices will start on on April 26, the day after the board releases its official report on the suitability of senior judges. Justice Ojwang' Boma, who has also been promoted to the Supreme Court, will appear before the board on April 26 followed by Mohammed Ibrahim, also of the Supreme Court on the following day. The board's recommendations could potentially disrupt the functioning of the already short-staffed Supreme Court if any of its judges fail the vetting process. The Supreme Court has nine members but is already one short following the suspension of Deputy Chief Justice Nancy Baraza. Article 163 (2) provides that the Supreme Court shall be properly constituted for the purposes of its proceedings if it is composed of five judges.
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