BY MOSES CHELANGA
“The Board has emphatically assured the parties to the vetting process that the Board will not usurp the role of Appellate Court” ~ Judges and Magistrates Vetting Board
Vetting of judicial officers and its surprises was not unexpected. By a 38 page determination and 16 page dissenting determination, the Judges and Magistrates Vetting Board in discharge of its solemn statutory mandate effectively declared that four out of the nine Court of Appeal Judges with an aggregate judicial experience of about 150 years are unsuitable to continue in service. The outcome of the first determination of the vetting board has received public support.
I am not an anti-vetting evangelist but I beg to differ with the vetting board on three issues which are potential minefields and irreversible errors. I call them the three mortal sins against administration of justice.
The first accusation I lay against the vetting board is that despite its assurance, it arrogated itself as appellate court to review and set aside the decisions of the judges, in this case it acted as a superior tribunal to the Court of Appeal. Whereas the vetting board has to consider prior judicial pronouncements against a judicial officer, it should be sparing in declaring a judicial officer unsuitable simply because the board does not agree with the reasoning of the judicial officer in question.
Without any preference to any of the judges, I will give an example of the Justice Omolo’s case. There was no allegation of fraud, corruption or incompetence against the judge. One of the reasons that rendered him unsuitable to be a court of appeal judge is a decision in a famous Rai case he rendered in 2007 the lead opinion of the Court of Appeal constituted as a bench of five Judges.
To put it in perspective, Rai case was a high profile litigation whose subject matter was fairly a big Asian family milling company known as Rai Ply Woods (Kenya) Limited based in Eldoret. Part of the Rai family members went to court seeking among others winding up of the company. The legal battle was fought all the way to the Court of Appeal where Justice AB Shah wrote a lengthy leading opinion of the court which struck out the petition to wind up the company. It is noteworthy that the Court of Appeal was then the highest court in the land.
The aggrieved members of the Rai family would later go to the same Court of Appeal seeking to reopen the case and set aside the earlier judgment of the Court – Justice AB Shah had then retired. The principal ground of such application was that Justice AB Shah had been biased in the conduct of the previous proceedings in that he enjoyed a close relationship with one of the opposing parties’ advocates as client/advocate in addition to both being members of Masonic Lodge along Nyerere Road where members allegedly take a brotherhood oath to assist each other at all times.
This case then came before the Court of Appeal constituted as five with Justices Omolo, Bosire, Githinji, Waki and Deverell. Justice Omolo wrote the leading decision of the court the gist of which was that there should be an end to litigation, the Court of Appeal being the highest court of the land could not re-open and reverse its previous decisions, and there must be finality. In any event there was no provision under the statute and rules of the court to empower the court to re-open a closed case. The rest of the bench entirely agreed with the pronouncements of Justice Omolo. This decision remains good law and has been accepted by majority of the lawyers as a binding precedent.
In considering the suitability of the judge, the vetting board considered the above decision and said that the reasoning of the judge was not persuasive. Without invoking any specific provision of the Appellate Jurisdiction Act or the Court of Appeal Rules, the vetting board further says that the Court of Appeal could re-open the case and gave a gratuitous advice that the judge could have adopted the United Kingdom tradition as set out in a decision of the Pinochet case, a decision of the UK House of Lords, a clearly distinguishable non-binding authority. If this is not usurping an appellate authority, then nothing is. The vetting board became a superior authority to the Court of Appeal reviewing and overruling the Court’s decisions. I therefore find the vetting board failed on this score. Perhaps the vetting board can change its mandate to law reporting.
It is my submission that judicial independence entails judges making independent albeit unpopular and politically incorrect decisions provided that the same is made in good faith backed with legal reasoning and not out rightly against the statute or obviously established legal principles. Judicial independence in its broader sense is recognized by the statutes giving judges immunity against actions and questions in conduct of their judicial functions to enable the judicial officers conduct their duty freely and fearlessly. This is the foundation of Article 160(5) of the Constitution.
Unlike the ecclesiastical popes, the judges lay no claim of infallibility of law and facts. Judicial officers are by law given benefit to make mistakes which are euphemistically known as errors of law and facts, for it is only human to do so. The law recognises this fallibility by providing for avenues of appeal from the decisions of judicial officers. As for the highest court in the land, one time US Supreme Court Judge R.H. Jackson aptly put “we are not final because we are infallible, but we are infallible only because we are final”.
The reasoning of the vetting board has therefore scuttled judicial independence and opens a floodgate of politically correct and “save” decisions as opposed to independently applying their legal minds on the facts of the case before them. It is a bad precedent which must be stopped.
The second charge facing the vetting board is discrimination and selective vetting. The first judicial officers to be vetted were the Court of Appeal Judges. The Court of Appeal in giving substantive decisions sits in odd numbers of either three or five judges. Accusing the court of incompetence, inconsistency or devoid of reason means that the whole bench, in case there is a unanimous or concurring decision(s), is incompetent, inconsistent and devoid of reason, all the sitting judges should be declared unsuitable judicial officers.
The Rai case was a bench of five judges of Justices Omolo, Bosire, Githinji, Waki and Deverell. Justice Deverell is retired, Justices Omollo and Bosire have been declared unsuitable to serve, and Justices Githinji and Waki were found suitable to serve. How this is possible when all the judges “entirely” agreed with Justice Omolo is not explicable.
This discrimination also spreads to the case of Justice O’Kubasu who was found to have authored judgment containing anomalies and lacking in capacity of objective and persuasive reasoning in the case of Kenya Hotel Properties Limited vs. Willesden Investments Limited a dispute over a parcel of land used for parking between Nyayo House and Inter-Continental Hotel. This was “Judgment of the Court”, a unanimous decision signed by all the judges who presided over the case being Justices O’Kubasu, Onyango Otieno and Aganyanya. Justice Aganyanya is retired. How Justice Onyango Otieno is suitable to serve under this head I cannot decipher.
Finally readership of the vetting board’s determination is based on presumptions and speculation without scintilla of evidence that because a judge has decided on one way or another, there must be an influence towards that direction. The fact that one decides in favour of a rich powerful businessman or politician does not mean one has been compromised. There must be evidence of the chain link and not innuendoes and implications.
For these reasons I find the vetting board unsuitable to vet. I have also lowered my expectations of the overrated vetting process. The vetting board will sanitise Ringera’s infamous radical surgery.
The affected judges have seven days from the day of determination to seek review of the board’s decision to the same board. The vetting board made a unanimous decision of their suitability, the review I have argued before is just but an academic exercise.
(Chelanga is an Advocate of High Court of Kenya and a Legal Consultant. Email:firstname.lastname@example.org)