A MASSACRE BY OPERATION OF LAW!? Ruminations on the determinations of CoA Judges by the Vetting Board

Justices Omollo, Bosire and Nyamu, three of the four CoA Judges found unfit to continue service by the vetting board - Courtesy of Capital FM News.

In Peru, the then president Fujimori spearheaded a purge that saw 13 Supreme Court Justices, all members of the constitutional tribunal, all members of the national and district councils of the judiciary and the Attorney General fired. My colleagues tell me that in Georgia they got rig of an entire corps of judges in 1998. In Kenya we had our very own ‘radical surgery’ in 2003 that saw almost if not more than 100 judicial officers sent home for an assortment of allegations ranging from outright corruption, to impartiality to incompetence. A process which regrettably we are not proud about and hence the current Rao-led vetting board. Indeed, different jurisdictions have reacted differently to situations where the judiciary completely lacks credibility. Whether these different actions, some appalling have proved effective in these countries is subject for another day’s discussion.

Am Skimming through the 38 page long decision of the vetting board, in the just concluded vetting of the court of appeal judges that has elicited mixed reactions from several quarters including our media that still sensationally refers to it as a ‘major purge’ as can be seen here.

An interesting decision I must say! A friend calls it ‘a massacre by operation of law’! A closer look at it greatly informs what led this group of distinguished individuals to a conclusion that saw Four Seniour Judges of the Court of Appeal sent packing.

From the onset, and something that the board has repeatedly said is that the process is NOT a purge [that would have involved an “automatic exclusion based purely on actual or presumed membership of an identified group” – Par 28], neither is it meant to punish, discipline, exonerate or reward the judge, but to restore public confidence in the judiciary.

But how did it deal with each of the Judges before it?

Hon. Justice R. Omollo: The board appreciated the judge’s many years of service and clarified that corruption was never an issue subject for consideration in his case. Lack of independence and impartiality being the main issues, the board examined two decisions where the judge made inconsistent decisions.  Another was where the judge outrighttly opted for finality of a case over the interests of justice. The past too came back to haunt him with cases such as those involving retired President Moi and the then Opposition leader Matiba being examined. Matiba was incapacitated and couldn’t therefore sign the petition and wanted his wife to do so for him. The board said the judge showed complete disrespect for persons with disabilities when he said that if Mr. Matiba was actually incapacitated, “…he had no business wanting to be the President of Kenya”!!! – Page 13, Para.  8.

Two members dissented but the majority view was that he was not suitable to continue serving in the judiciary.

The board however showed a lot of sobriety by making it clear that as a result if the judge’s vast experience, he may be utilized in facilitating access to justice and learning, if he so wished.

Hon. Justice S. Bosire: The board clarified that any accusations of corruption were unsubstantiated, and the same was therefore not an issue. The board steered clear of an issue which is still subject to an ongoing case at the high court over a property in Mountain View. Questions were raised about the trials around the 1982 coup including torture of suspects. The famous ‘Goldenberg inquiry’ too came back to haunt him. The board observed that the judge had blatantly failed to obey a high court order requiring persons adversely mentioned before the commission to be summoned stating that the persons had the ‘right of silence.’ – Page 18, Para. 9. The judge also failed to attribute the lack of confidence in the judiciary to ‘a profound moral dysfunctionality’. Also raised was the unduly active and aggressive manner with which he intervened in cases before him and the board concluded that these were not appropriate.

He too was recommended for future service for the furtherance of access to justice and learning if he so wished. However in his case, the decision to dismiss him was unanimous.

Hon. Justice E. O’Kubasu: First issue was that he was represented by counsel, Mr. Mwenesi who had appeared before him in a pending appeal on the vetting process and whether it would be invidious for the same lawyer to appear before him in future. The judge responded that his social relationships had never interfered with his work as a judge during his long career. A number of complaints linking him to corruption were disregarded for lack of credibly evidence. AND THEY WERE MANY! He was accused of allegedly accepting a stay at a London hotel after giving a stay for a case he should not have presided over in the first place. He denied this though the witness insisted that he had even met him there! The board recognized the judge’s refusal to succumb to political pressure in a case involving Prof. Ngugi wa Thiong’o.

The board found that the judge had failed in his ability to understand the need to maintain propriety and the appearance of propriety as required in Section 18(2)(c)(iii) – Page 26, Para. 19. He too was recommended for future service by virtue of his long standing service.

Hon.Justice J. Nyamu: The board recognized his ‘fertile legal mind’ and hardworking nature, delivering judgments on time. His role in ADR was also made reference to by the board. The judge was accused of forging documents while he was an Advocate and duping a client into transferring part of her land to a company in which he was a director. He is said to have lacked candor while filling up a questionnaire from the board requesting information of whether he was party to any civil proceedings. Allegations of being a ‘gate keeper’ were also leveled. The board observed that he failed to respond to these criticisms objectively. The board elaborately highlighted cases presided by the judge where it was clearly manifest that he frustrated any attempts to hold high profile individuals to account for economic crimes.

The decision to relieve his of his duties was unanimous.

Hon. Justice A. Vishram survived on a 6:3 majority decision. A strong majority but issues were raised about his conduct in a case involving business man S. K.  Macharia.

The above decisions were in my opinion made in a very fair manner, and proper due process was followed. In the decisions, the board steered clear of acting as though it was an appellate court presiding over cases previously handled by the judges. The board stuck to its mandate e.g. by not basing decisions on on-going cases. 

Some issues are however worth mentioning.

• On what basis were the rest of the judges found fit to continue serving?
• Why were hearings held in private ESPECIALLY and including those of judges who were found fit to continue serving?
• The appeal judges dismissed may not have sat alone in some of these cases, what of the rest?
• One lawyer stood out as having complaints against all the judges, was any of his evidence considered in light of the fact that he may have been representing more than just himself?
• What does the board mean by recommending the dismissed judges for future roles of facilitating access to justice and learning from the positive and negative aspects of judicial life in the past? 

I however look forward to the high Court process, but shudder at the number of judges who may be found unfit to serve if the standards applied at the court of appeal are anything to go by. The JSC ought to immediately institute measures to cushion against a resurgence of a lack of confidence in the judiciary due to a delay as a result of a lack of judges to preside over the cases; four Court of Appeal judges is a big number!

The process was as dignified as it ought to be, dignity befitting these Seniour members of the profession. All in all, well done Rao and co!

My predictions: Justice Nyamu may JUST apply for a review…. Justice Vishram may not be completely out of the woods AS YET….