Blow to vetting board on scrutiny of judicial officers

Kenya: The Supreme Court has settled the stalemate between judges and the Sharad Rao-led vetting board after it ruled that the board has no powers to investigate issues arising after promulgation of the Constitution.

The court upheld the ruling of the High Court and the Appellate Court that barred Judges and Magistrates Vetting Board from probing the conduct of judges over matters arising after the Constitution took effect on August 10, 2010.

The decision of the five-judge bench comprising Justices Willy Mutunga, Kalpana Rawal, Phillip Tunoi, Jackton Ojwang’ and Smokin Wanjala cushioned the judicial officers from being questioned or dismissed on the basis of complaints or incompetence arising after the said period.

“We find and hold that the Judges and Magistrates Vetting Board in execution of its mandate as stipulated in section 23 of the sixth schedule can only investigate the conduct of judges and magistrates who were in office on the effective date on the alleged act and omissions arising before the effective date and not after the effective date,” the court ruled.

In the ruling read by Justices Mutunga and Wanjala, the transitional nature of vetting would not be realised if the vetting board would be allowed to question and axe judges on issues happening until today.

The Supreme Court judges said if they would have ruled in favour of the board, the newly appointed judicial officers would be at the mercy of the vetting team and thus cause conflict of roles between the board and Judicial Service Commission (JSC).

They ruled that JSC was the only body mandated to look into discipline issues of the officers as from August 11, 2010 onwards. The court was of the view that the board can report an officer to JSC for disciplinary action on arising complaints.

The Supreme Court in its 22-page ruling also shielded judges and magistrates from being haunted by their practice as lawyers after their appointment to rule over matters in court by limiting the timeline by which they ought to be answerable to the vetting board.

Justices Mutunga, Rawal, Tunoi, Ojwang’ and Wanjala held that judicial officers would only answer issues pertaining to their practice from the date of appointment under the old law up to and until the promulgation of the 2010 Constitution.

“It follows that as to the question how far back. The answer is from the date of appointment under the retired constitution up to and until the effective date,” the bench ruled.

The ruling is a blow to the Sharad Rao-led body as it will have to stick to the stipulated timelines to vet judges and magistrates.