By Wahome Thuku and Isaiah Lucheli
It was long buried and forgotten, or so it appeared, but the Goldenberg scandal returned with devastating effect on Wednesday, ending the colourful careers of two senior Court of Appeal judges.
And with it came renewed hope that the radical surgery of the Judiciary long sought by Kenyans Chairman of the Judges and Magistrates Vetting Board Sharad Rao presenting the board’s report on Wednesday. [Photo: Govedi Asutsa/Standard]
to restore confidence in the courts is finally on course.
Chairman of the Judges and Magistrates Vetting Board Sharad Rao presenting the board’s report on Wednesday. [Photo: Govedi Asutsa/Standard]
The two are Justice Samuel Bosire, and Justice Joseph Gregory Nyamu and their fates are tied to cases they presided over in the long drawn Sh5.8 billion scandal, the first mega-corruption case in Kenya’s history since Independence.
They are among four Court of Appeal judges dropped from the Judiciary on Wednesday in the first phase of a process that looks likely to claim more casualties in coming weeks.
The others are President of the Kenyan Appellate Court, Justice Samuel Cornelius Riaga Omolo and Justice Emmanuel Okelo O’Kubasu. The careers of the four hit sudden death based on decisions dating years back after being declared unfit to continue in office by a vetting process that begins its second phase this morning.
Apparently, the infamous Goldenberg scandal, whose alleged chief architect Kamlesh Pattni, is hauled to court on the eve of virtually every General Election since Kenya became a multi-party state, returned to haunt judges Bosire and Nyamu in a peculiar way.
Bosire suffered for ignoring orders issued by Nyamu in 2006 to have 10 prominent personalities summoned to testify before the Golden Commission of Inquiry. Bosire was then the commission chairman while Nyamu was High Court judge.
But the consequences of the decisions announced by the Judges and Magistrates Vetting Board Wednesday could have more implications since under the law, all the judgements that led to the removal of the four could be reviewed by the Supreme Court and reversed.
One such judgement that will now be in focus is the decision that permanently stopped the then impending trial of Internal Security Minister George Saitoti over the Goldenberg scandal. This was the judgement that has knocked Nyamu out of the Judiciary, ending his career on the Bench.
Section 14(1)(b) of the Supreme Court Act provides that to ensure that the ends of justice are met, the Supreme Court shall, within 12 months of the commencement of the Act, either on its own motion or on the application of any person, review the judgements and decisions of any judge removed from office, pursuant to the vetting process.
They, however, have to be only those decisions, which led to the removal of the judge. It means anyone or the court itself could initiate an application to have the cases reviewed but within two years of the Act.
Justice Nyamu lost his job over the manner he cleared Prof Saitoti, when he served in the Constitutional Division of the High Court.
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The judge, who sat in a Bench of three, had issued orders striking out all portions of the commission report touching on Saitoti, giving the minister a clean bill of health.
The court had ruled that because of the long delay and wrong findings of the commission, Saitoti would not get a fair trial.
The case was thereafter adopted in several other proceedings challenging the findings of the commission.
"The language used in the order was intemperate and gratuitously disrespectful," Judges and Magistrates Vetting Board Chairman Sharad Rao said when reading the decision of the team.
Nyamu heard the case with two other High Court judges now waiting to be vetted. He also faced questioning over the transfer of a piece of land when he was still a practicing advocate.
He had also been questioned over claims he was a gatekeeper in the High Court for the Executive branch of Government who found favour with former Chief Justice Evan Gicheru.
The Appellate Court sitting in Kisumu was abruptly adjourned on Wednesday morning after the presiding judges heard that two of them had been relieved of duties.
Judges Omollo and Bosire were deciding cases filed at the Appellate Court only for them to hear that they had been sacked, while on duty.
Anxiety gripped the sessions forcing the judges to stop determination of more cases to catch up with the announcements beamed live on television screens.
Court of Appeal judges who survived the vetting and were declared suitable to continue serving are Supreme Court judge Philip Tunoi, and justices Erastus Githinji, Philip Waki, Otieno Onyango.
Justice Onyango was a member of the committee that in 2003 proposed the removal of a several judges from the Judiciary in the now infamous "radical surgery" that never was. Justice Tunoi was promoted to the Supreme Court mid last year.
It was second time lucky for Waki after a previous attempt by a tribunal to remove him from office on corruption allegations flopped.
Justice Omolo was found wanting over the manner in which he handled a petition filed by presidential candidate Kenneth Matiba in 1993 challenging the election of Daniel Moi as President.
Matiba had then granted his wife power of attorney to sign the petition papers because he was physically incapacitated.
But Omolo held that Matiba should have personally signed the petition as per the law and excluded any other signature.
"In addition to the concurrence reinforcing the main judgment’s defiance of common sense and closing down of space for democratic contestation, it gratuitously showed grave disrespect for disabled people, castigating the petitioner in an ungenerous and uncalled-for manner," the board held.
Six of the nine members of the board determined that Justice Omolo, who until on Wednesday was a member of the Judicial Service Commission, is unfit to continue serving.
Omolo was last year floated as a possible successor to Chief Justice Evan Gicheru. All the judges except justice Onyango bid for appointment to the Supreme Court, but only Tunoi was successful.
Omolo, Bosire, Visram and Nyamu had also applied for appointment as CJ. Apparently the Matiba case featured prominently when Omolo was interviewed by the same JSC for the post of CJ.
The Goldenberg commission he chaired between February 2003 and March 2003 brought down Justice Bosire.
Justice Nyamu had ordered the team not to wind up proceedings before calling prominent figures to testify, including former President Moi, ministers George Saitoti, Musalia Mudavadi, and former minister Nicholas Biwott, among others.
"He simply treated it as if it was not binding on him and ignored it," the vetting board commented.
Bosire was interviewed over his role as the judge that presided over the trial of Kenya Army officers implicated in the August 1982 coup attempt.
The killer blow for Judge O’Kubasu were allegations that he was hosted in a London hotel by a man whose brother had a case before him, and that he presided over the case filed by a businessman who was close to him.
The board suggested a soft landing for the fallen judges, proposing that appropriate ways be found to make them useful in facilitating access to justice.
The removal of the four leaves 11 judges at the Court of Appeal, including seven who were elevated from the High Court in December last year. The seven will, however, be vetted starting today with their High Court colleagues.
The board is expected to conclude its business by the end of February next year, with an opportunity for extension of term by a year.