Board upholds verdict against ‘unfit’ judges

July 20, 2012 4:06 pm
The board rejected applications for review that had been filed by, Omollo, O’Kubasu and Nyamu while it affirmed its verdict on Bosire despite granting a review/FILE

, NAIROBI, Kenya, Jul 20 – The Vetting of Judges and Magistrates Board has upheld its findings that Court of Appeal judges Riaga Omolo, Samuel Bosire, Emmanuel O’Kubasu and Joseph Nyamu are unsuitable to serve in the Judiciary.

The board rejected applications for review that had been filed by, Omollo, O’Kubasu and Nyamu while it affirmed its verdict on Bosire despite granting a review.

According to the board, the applications by judges Omollo, O’Kubasu and Nyamu who had in April been declared unfit to serve in the Judiciary, failed to meet the pre-requisite qualifications in application for a review.

Section 22(2) of the Vetting of Judges and Magistrates Act states that the board shall not grant a request for review under this section: “Unless the request is based on the discovery of a new and important matter which was not within the knowledge of, or could not be produced by the judge or magistrate at the time or on an error apparent on the face of the record.

In the case of Justice Bosire, the board maintained that its determination had referred to the manner in which he had responded to questions about how he felt about being part of a law enforcement agency that had allowed torture to take place and only commented on his defensive attitude and lack of outrage.

“If the finding had been that he himself had condoned torture then, possibly, further evidence of specific acts of torture might have been appropriate. But the focus was on his attitude today to the gross violations that had taken place… If there is an error, it lies in the description of the board’s findings, not in the findings themselves,” the board said.

Bosire also argued that the presence of board member, Ngotho Kariuki, who was a victim of torture would make the commission subjective. This preposition was dismissed with the board saying that: “This argument is equivalent to saying that a judge who has been involved in divorce proceedings should not handle divorce cases, or that a judge who has been a victim of crime should not sit in criminal trials.”

The board clarified that it had not made a finding that Justice Bosire had been involved in or presided over matters where the rights of the accused had been violated.

“The judge is not a lay person unfamiliar with the processes of the law. In his CV he referred both to his work on the Goldenberg Commission and as a Judge Advocate. This formed part of his past work record, which the Vetting Board was required to consider,” said the board.

Justice O’Kubasu made three principal submissions, which challenged the factual findings of the board about a property case, the judge’s alleged stay in a London hotel owned by a butcher he had earlier represented and the answers the judge gave about his retirement date.

The board concluded that the judge did not seek to introduce new matter in the form of evidence and maintained that in its determination – in which it criticized the judge’s application of legal reasoning to the facts – was confined to one judgment, and did not reflect more generally on his technical capacities as a judge.

“The judge was inviting the board to reverse its finding that he lacked candour, in varying degrees, when answering these questions. The error must be ‘apparent’ but the judge simply tried to persuade the Board to change its conclusion by repeating his earlier position,” said the board in dismissing the application.

Justice Omolo in his application for review had alleged that there was discrimination where he was declared unsuitable based on a case where a five judge bench made a judgment.

Board chairman Sharad Rao said that other far weightier considerations informed the board’s findings in April and it was not done based on a single case.

“At the conclusion of each interview, the board weighs all the positive and negative features relating to the suitability of the judge concerned… what mattered was not the holding with regard to the Rai case itself, but its significance as part of the accumulation of negative features,” the board said terming Omolo’s argument as misconceived.

According to the board’s findings, Justice Omolo failed to show impartiality during the era of Daniel arap Moi.

Justice Omolo was also guilty of authoritarianism on the bench and inconsistency in his judgments of political cases.

In the case of Justice Nyamu, the board said that Nyamu was not introducing an important new matter or establishing a mistake or error apparent on the record but ‘seeking a second bite of the cherry.’

The board insisted that the judge had been given sufficient notice of the list of cases that would be under discussion during the vetting process as similar matters came up during his interview with the Judicial Service Commission.

Justice Joseph Nyamu was hounded out of office for his conduct when he headed the Constitutional Review division of the court.


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