Judges' vetting verdict raises storm

By Wahome Thuku

A decision to nullify the dismissal of two senior judges through the on going vetting process and to vet them afresh has raised legal questions.

Lawyers were yesterday questioning the basis upon which the Judges and Magistrates Vetting Board (JMVB) decided to subject Supreme Court judge Mohammed Ibrahim and Roselyn Nambuye of the Court of Appeal to fresh vetting process.

The board chaired by seasoned lawyer Sharad Rao made the decision to nullify it’s July 2012 decision after the two judges successfully pushed their case for review.

The board however sent home another High Court judge Joyce Khaminwa and also rejected an application for review by her colleague Jeanne Gacheche.

It also cleared three other Court of Appeal judges Martha Koome, David Maraga and Kalpana Rawal declaring them fit to continue serving.

“There is no provision in the constitution for fresh vetting or fresh interview. Neither the Constitution nor the Vetting of Judges and Magistrates Act envisages such a decision” said lawyer Fred Athuok, one of the lawyers representing justice Ibrahim before the board.

Athuok argued that once the board had nullified the decision declared a judge unfit to continue serving, it could not subject him to another round of vetting.

“The question really is how many times the board can make a determination, nullify it and vet afresh. It can be an endless process,” said another lawyer.

In his application for review, Justice Ibrahim claimed one member of the panel that vetted him had been biased. The member had sent a text message to advocates on July defending the decision to send the judge packing

Though the board defended its position saying all judges had been given an opportunity to state whether they had objection to any member of the panel vetting them, it decided to vet Ibrahim afresh.

Rao said in the peculiar circumstances of the case, the panel and the board had decided that the vetting of the judge be nullified in the interest of justice.

“The chairman of the board will constitute a panel to interview the judge afresh,” Rao said.

The review of Ibrahim’s determination has been the subject of controversies and exchange between him, the Law Society of Kenya and the judiciary.

A case has been filed in Eldoret challenging the legality of the vetting on numerous grounds including the question as to whether a Supreme Court judge could be vetted.

On Nambuye’s review the board acknowledged had erred in determining that she had not submitted an audit of all her outstanding judgements while as she had done so during the vetting.

“This error was significant since the board relied on this incorrect fact to make damaging findings,” her lawyer Peter Simani had claimed. The board decided she would also be vetted again.

Justice Khaminwa, wife of senior counsel Dr John Khaminwa was removed for delay in delivery of 63 judgements and rulings some dating back to 2006.

The board was convinced that Khaminwa, who represented before it by her husband, did not have any more energy, focus and concentration to continue serving as judge.

She had informed them that in 2011 she had been ill and her work had been distributed to other judges. In 2009 she delivered only 20 judgements.

“The judge seemed unwilling to acknowledge that she would have conducted her court in a manner that would have ensured a more efficient case flow management system,” Rao said.

Justice Khaminwa was the first black woman to set up a law firm in Kenya in 1969.

The board upheld the removal judge Jeanne Gacheche thereby sealing of her fate as the decision cannot be challenged in any court.

Justice Koome escaped the sacking narrowly with the board members tying four to four on a vote to decide her fate. She had been vetted publicly on May 2 and 16 this year.

Judge Maraga was cleared of accusations of receiving a bribe an allegation he denied by swearing with a Bible. He had also been accused among others of being lenient in sentencing a police officer to 10 years in a charge of manslaughter.

Rawal faced about six different accusations touching on the manner in which she had ruled cases. She had been accused of irregularly ordering the exhumation of a body from a plot owned by the deceased’s family member to be buried in another plot.

She was also interrogated on claims that she awarded hefty sums of money in damages to wealthy individuals compared to other litigants.

Rawal was also questioned over her temperament, which the board said left much to be desired, though there was no evidence that it was a grave problem.

The three who were vetted in May were earlier the subject of yet another controversy between the judiciary and the board over the delay in announcing their fate.

The board had deferred the announcement to a allow them conclude a case involving the setting o the next election date.