Delays expected as judges’ vetting gets underway

By Lillian Aluanga

Appointment of temporary judges and longer working hours for those already in office may help ease case delays caused by the ongoing judicial vetting.

The vetting, which is set to move to the High Court and other lower courts, has been praised as a milestone in reforming one of the key institutions in governance. But it also comes with challenges that may slow down movement of cases, causing delays of up to two years.

Four Court of Appeal judges — Samuel Bosire, Riaga Omollo, Joseph Nyamu and Emmanuel O’Kubasu were last month sent home by the Judges and Magistrates Vetting Board, with more heads expected to roll as the exercise extends to the lower courts. Three of them have appealed the board’s decision.

They, however, cannot continue to serve on the Bench nor their replacements made until their appeals are dispensed with.

“The Judicial Service Commission could consider appointing Commissioners of Assize or temporary judges to fill in the gaps occasioned by the departure of judges and magistrates likely to result from the vetting,” says Kituo Cha Sheria Executive Director Priscilla Nyokabi.
In remarks made while addressing the vetting board last week, Chief Justice Willy Mutunga appealed to the nine-member team to “carry out its mandate with speed and adroitness without compromising professionalism and fairness.”

Mutunga said it was imperative the vetting is completed quickly to remove anxiety in the Judiciary and avoid “threatening the administration of justice by creating pockets of fatalistic inertia and even graft.”

Currently, there are about 11 judges left at the Court of Appeal following the departure of the four. One judge is, however, on sabbatical leave and another is on secondment as head of the Judiciary Training Institute. Law Society of Kenya chairman Eric Mutua says while there will be a delay in cases as a result of the vetting, it was only temporary.

Bigger issue
“The public will have to temporarily bear with the consequences of the vetting which is intended to resolve a bigger issue,” says Mutua.

But he, too, says Judicial Service Commission should come up with mechanisms to fill in the gaps given there is likelihood of more judges and magistrates leaving as the vetting moves to other courts.

“JSC can for instance recruit judicial officers, but hold on to the results until the board releases its findings,” he says. But, human rights lawyer Harun Ndubi says there is little JSC can do until the appeals by the affected judicial officers are determined.
While supporting the option of appointing temporary judges, Ndubi says it must not be encouraged since it may also pose other challenges.

“Technically, it may work as a temporary solution and is actually the only legal option we have of getting replacements, but in some ways it would undermine the overall intent of overhauling the judiciary which is at the core of the vetting,” says Ndubi, who also heads the Haki Focus.

Appointing temporary judges, he says, would see a group of individuals who may not have to go through the rigorous vetting that other judges have had to go through, assuming office.

“There have been calls to have lawyers vetted. I doubt that there would be many who would be willing to subject themselves to a rigorous exercise that will only see them hold office for a period of one or two years,” he says.

According to Mutunga, the Court of Appeal had, by January, received 1,005 records from High Court stations countrywide. It is also expected an additional 971 records of criminal appeal will be handed in before the end of this year.

Acceptance of written submissions as opposed to only oral arguments has also seen the Appeals Court reduce the number of pending cases, since 2004, from 88 to 76, while the waiting period for civil applications will be reduced from six months to one week.

Further, by accepting written submissions rather than waiting for oral arguments, the Court of Appeal reduced the old cases pending since 2004 from 88 to 76. The waiting period for civil applications is also expected to be reduced from six months to one week.

But, it has been argued sustaining the tempo of such gains will require quick replacement of judicial officers or use of alternative dispute resolution mechanism to avoid a backlog of cases. “We may need to amend the Judicature Act which stipulates working hours for the judges as between 8.00 and 5.00pm to even have judges working over the weekend,” says Ndubi.

This option would, however, require Parliament’s approval. There is also the possibility of having appeals that are not complex handled by one judge instead of three to hasten movement of cases.

According to Mutunga, the decision by the vetting board to send home four judges meant that 109 judgements in cases that had been concluded were not delivered. Of these 30 judgments had been signed and are ready for delivery and will be issued in due course. About 47 judgments in cases already concluded will still be delivered.

Fresh start
In total, 77 judgments will be delivered in spite of the board’s decision. However, hearings for at least 32 cases will have to start afresh.

The CJ said he expected Acting President of the Court of Appeal to reconstitute panels to deal with 234 cases scheduled for hearing at the court in May 2012. This means that only about 114 cases will be heard.

Nyokabi, however, says JSC should have foreseen such eventualities and strengthened internal systems within the judiciary to address such gaps. “Other organisations also lose staff, but service delivery still continues,” she says.

The commission, she says, could borrow from the experience of Government in filling gaps in the civil service during the Structural Adjustment Programme in the 1990’s.

Ndubi projects delays of anywhere between two to three years, but says it’s a necessary sacrifice for the public to make in restoring the Judiciary’s credibility.
“Its unlikely the vetting board will complete its task in less than two years, and may in fact seek an extension of its term,” says Ndubi.