Spare us drama on judges vetting, just clean up mess

By John Gerezani

A couple of Sundays ago something unusual happened which could have passed unnoticed by many. A prominent member of the Judicial Service Commission (JSC) Ahmednassir Abdulahi had penned an article in a newspaper opposing Parliament’s intention to move the vetting of magistrates from the under siege of Judges and Magistrates Vetting Board (JMVB) to the JSC.

On yet another page of the same paper, Chief Justice Willy Mutunga was quoted as supporting Parliament’s move. I sensed a deepening crack in the JSC and shared it casually with my colleague not knowing that matters would go full circle and come to the present state where the courts have temporarily suspended the operations of the JMVB while the Law Society of Kenya (LSK) is breathing fire over recent activities of the board.

Let me state here that it is apparent there is no real vetting taking place in both bodies and they should spare us the drama and clean house. It seems there is a pre-determined list of who must go and who must stay and I want to back up my contention with hard evidence. Stephen Kariuki Wangari versus the Republic is a case that was as perplexing as could be.

For the first time in history, the High Court heard a criminal appeal, dismissed it then re-heard the same case and allowed the appeal. Faced with a dilemma of having both committal and release orders for the same inmate, prison authorities decided to await the decision of the Court of Appeal that subsequently released the brother but not before casting aspersions on how the matter was handled.

Well, the Judge who wrote the two different judgments on the same matter has been cleared by the JMVB in such glowing terms that she has had the temerity to apply to be considered for a vacant position at the Court of Appeal. Let us not forget that before the vetting process started, she had applied to the JSC for the same position before suddenly withdrawing.

However, what is startling is the very public spat between the CJ and the LSK chair over the suspicious reinstatement of Justice Mohammed Ibrahim with the latter seeing vested interests at play. Well, we all know that Dr Mutunga and Mr Ibrahim
are old chums having both suffered detention during the Moi regime but just like LSK says and I agree, why are the rules being bent to favour a certain clique in the Judiciary?

The judge had a huge portfolio of unwritten High Court judgments by the time JSC cleared him to serve in the Supreme Court.  The initial JMVB decision to send him packing while lauded by litigants and lawyers as an apt move also brought into sharp focus the parameters used by the JSC in vetting. It is the same JSC that had also promoted Lady Justice Roselyn Nambuye to serve in the appeals court only for JMVB to find her unsuitable on the same complaint of undue delay in writing and delivering judgments.

She must have ruffled some feathers in her appeal for review when she named equally guilty fellow judges who had been spared the sack, raising the spectre of discrimination in the Judiciary.

Did someone panic that Nambuye had exposed the judicial skunk and had her placated before she could rock the boat from within The jury is out on that but the fact is the entire vetting process has been proved to be a farcical shuffling of cards with a lot of motion but little action. Let me wrap this up by asking the JSC to give out the full list of the judges it has employed since its Constitution with an emphasis on regional spread and if any was employed by virtue of their relations with members of the commission.

It would be helpful also to know what informed the decision to hire 50 per cent of new judges of the Environmental and Land division from one region and if that inspires faith and confidence. That is not to question the judges’ competence but to address perception in a country where every decision is viewed through a very narrow prism—tribe.

And please spare me the razz-mattaz of specialisation; many judges countrywide handle all manner of cases ranging from civil to criminal to environmental and public law without a whimper. I suggest a public debate between Mutunga and Mutua on these weighty matters. I rest my case.

The writer comments on social issues