How do you punish judges for thoughts expressed in rulings?

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KIRIRO wa NGUGI

In two related instances revolving around the Judiciary, Kenyans have opted NOT to follow their Constitution.

In 2008, we went to the streets and eventually to the Serena Hotel, rather than the courts to resolve our differences over the 2007 Presidential results.

Then, at Article 23 of the sixth schedule, we suspended the relevant provisions in our Constitution to set up a Vetting Board to determine the suitability of all judges and magistrates who were in office on the day the new constitution took effect, rather than just follow our brand new Constitution.

The Vetting Board has now pronounced itself on all the Court of Appeal Judges. In so doing, it has demonstrated that, other than satisfying a macabre thirst for public blood-letting of dignitaries, the vetting process has manifestly undermined and compromised our commitment to the rule of law in several important respects.

The Board proclaims loudly that “its role was not to sit as a court of appeal in relation to the factual or legal correctness of rulings given or judgments delivered by the judge.” Yet, in the majority of the determinations, this is precisely what the Board has done! It expressly admits without reservations that some of the documents it relied on were “any material available on the past work record of the judge including rulings made and judgments delivered.”

The Act that established the Board itself requires they take into consideration, inter alia; ‘past work record, including prior judicial pronouncements’. Therefore, in respect of Justice Riaga Amollo for example who was, as a consequence dismissed:

“The Board was not fully persuaded of the objectivity displayed by the court, either in the reasons carefully spelt out in the judgment or by the answers given in the interview”.

In respect of Justice Joseph Nyamu, the Board excelled in contriving to annihilate a judge who dared to think independently and expanded legal jurisprudence.

After noting that Justice Nyamu “had done much to shift the Judiciary from a narrow, technicist view of the law to a more purposive and value-driven one”, the Board nonetheless proceeded to weave an implausible theory that Nyamu’s tenure, starting with his ruling on the Saitoti case, entered into a “second phase” in which he became the gate-keeper for the rich and powerful.

Those familiar with Nyamu’s work, particularly from the bench are stunned. You may disagree with his judgements but even the Board noted the clear thinking, the courage, the accolades at the international arena and the expansion of jurisprudence which Justice Nyamu made as a judge.

Yet the Board, determined to find fault with Justice Nyamu, worked outside of their mandate when they purported to make findings over certain issues pertaining to a sale of land matter pending in a High Court case at Machakos to the detriment of parties involved and in direct contravention of Section 18 of the Vetting Board Act that specifically prohibits them from dealing with civil matters.

The Board also failed to frame all complaints against the judge properly in accordance with the rules of natural justice. Misconduct for instance, must be defined by law. Writing a judgement one way or the other cannot ever be construed to be misconduct!
Kenyans have thus connived to remove this and other Judges of Appeal on the basis of judgements they have delivered.

This is in clear breach of a fundamental tenet of the rule of law, international best practice and our own constitution. The real result of the on-going vetting process is therefore to undermine the independence of the Judiciary. How do you punish judges for thoughts expressed in their judgments and hope to maintain, or nurture independent decision making in the judiciary?

Once we have condemned the presiding judge on the basis of a judgement made by a panel of three, what becomes of the other members of such a panel? Are they also dismissed ipso facto, without further hearing, or are they “vetted” afresh on the same judgement; perhaps even held to a different standard to survive? How about the ‘offending’ judgement itself? Does it still stand in law or does it suffer the same fate as the judges who made it?

In order to leave no doubt as to our intentions, Article 23 Sub-clause (2) states: “A removal, or a process leading to the removal of a judge from office by virtue of the operation of legislation contemplated under subsection (1) shall not be subject to question in, or review by, any court”.

This is a blatant, untenable denial of access to court for those we shall have subjected to our local “kangaroo court”. The Vetting Act itself, the vetting process and the results thereof are ultra vires, illegitimate and must be set aside.

The Judges, even the ones we do not like, are entitled to protection under the constitution just like any other citizen. Let me remind those inclined to say that the vetting process is established by law that apartheid was also equally established by law.

(Kiriro wa Ngugi is a consultant in public affairs and policy).

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