Appeal court judges write to Mutunga over vetting

Appeal court judges write to Mutunga over vetting

WEDNESDAY, 25 JULY 2012 13:44 BY JILLO KADIDA

CHALLENGED: Judges’ Vetting Board chairman Sharad Rao at media briefing on Monday. Photo/David Ndolo

The Vetting board’s delay in delivering its decision on the suitability or otherwise of three Appeal Court judges hearing the case on the election date has triggered anxiety among

Sources at the judiciary said the judges feel the decision by the board to delay issuing their recommendations after vetting three of their colleagues amounted to interfering with the independence of judiciary. They said the impression the board has created is that the judges were being directed on their work by the board yet they were supposed to be independent. “When you tell me that you give me your ruling after I am done with a decision in a public interest matter I feel directed,” said one of the judges who did not want to be named.

At least one judge has filed an official complaint with the Judicial Service Commission over the issue. Following the complaint, Chief Justice Willy Mutunga is said to have written to the Judges and Magistrates Vetting board chaired by Sharad Rao asking it to expedite its decision on the judges. Last Friday, the board sent two judges — Supreme Court’s Ibrahim Mohammed and Appellate Judge Roselyne Nambuye — home after it decided they were unfit to continue serving as judges.

The board announced it would not give its decision about Justices Kalpana Rawal, Martha Koome, and David Maraga, who are currently hearing the case seeking determination of the elections date. Rao had said it would not be in the interest of the public to make public the vetting board's decision before the judges had concluded the case. This is the statement that the judges are saying is unfair and is causing concern.

Another judge who requested anonymity wondered why the board would imagine all the other cases they are handling were not of public interest other than the case on election date. “Every case is of public interest even one involving a dispute over a piece of land between two Kenyans. Justice doesn’t choose.” The judge wondered on whose directives the board reached the decision to withhold its findings until the three deliver their ruling. “Who directed the board to withhold its decision until we are done with our decision? Is it the Kenyan public or was there a memorandum the board reached?” posed the judge.

The board is only vetting judges and magistrates who were in office before the promulgation of the Constitution in August 2010. The case on election date which is in question was filed by the Centre for Rights Education and Awareness (CREAW). The group wants the judges to declare illegal, the March 4th date set by Independent Electoral and Boundaries Commission (IEBC) as the date of the next general election.

The group argues that under the new constitution, the term of current Parliament expires on August 14, 2012 and elections should therefore be held 60 days after that. The group believes that the decision of a Constitutional Court which held that elections could only be held 60 days after dissolution of the coalition government through a written agreement between the two principals or in March next year was tantamount to re-writing the constitution. The judges are expected to give their verdict on the election date case on July 31.