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Post by einstein on Aug 4, 2012 2:22:06 GMT 3
May be it was a good idea for B6K to lurk rather than directly engage Jukwaa. Now, look at this embarrassment. May be B6K wants to reconsider his mode of engagement on the board ? Akinyi, apology? This time around I think not. Einstein, a return to lurking mode? Not just yet. Job hasn't provided the information I requested so where's the embarrassment in that? This is the best of times to be fully engaged in Jukwaa ;D Buddy,That is cool with me, but let's wait and see for how long. If there is one person I never wish to casually contradict on this board, it is one Job Obonyo. I'm waiting with glee, but may be this time I bit more than I could swallow ;D ;D!! If that is the case, then I apologise well in advance mate!
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Post by job on Aug 4, 2012 5:20:06 GMT 3
b6k,Ooops, pole for waiting too long. I was engaged a lot...been quite busy. Take it from me - I enumerated in black and white right here just why Justice Omollo should not be part and parcel of the reformed Judicary, leave alone lead it. That's to be found in the thread on recruitment of the CJ - where I consistently pitched for Dr. Mutunga...I'll try pull it when I find time. Remember, all that came way ahead of the vetting for High Court Judges... When that second round of vetting came, I posted right here the compelling case against Omollo made by the vetting board. I didn't just remotely provide a link - but painstakingly copied and pasted the entire wordings - highlighting (in bold) all important aspects to showcase why Omollo wasn't fit. Did b6k feel I should belabor that eloquent argument by the vetting board with yet another post? Wouldn't I be repeating the same same points highlighted? Why do you think I was highlighting these 16 points - some in bold - against Omollo? Let's be real and honest! I still don't get your point b6k...is this a genuine miscommunication or something else? The good thing - despite respecting all valid opinions, I'm never a prisoner to mischievous (or misguided) ones. Where's the beef pal? Kama haiko haiko! Scroll to the second-last post below. (Reminder: It was Job posting and emboldening it. jukwaa.proboards.com/index.cgi?board=general&action=display&thread=5500&page=19KENYA JUDGES AND MAGISTRATES VETTING BOARD
DETERMINATIONS
CONCERNING
THE JUDGES OF THE COURT OF APPEAL PANEL FINDINGS AND DECISION The Board’s Determinations in regard to the 9 judges of the Court of Appeal subject to vetting are as followsI: Honourable Justice Riaga Omollo.1) Hon. Justice Omollo was interviewed on 23rd February, 2012. Justice Omollo started his career in the Judiciary as a Magistrate posted to a rural area, to becoming the senior-most judicial officer prior to the establishment of the Supreme Court. He is experienced and technically-adept and has made a major contribution to reforming and speeding up the processes of civil litigation. He has all the general qualities of competence and authority expected of a judge (though it should be mentioned that there were moments during the interview where forcefulness seemed to border on showing a streak of authoritarian impatience).
2) At the outset it should be stressed that the issue before the Board was not whether the judge had been corrupt. The only mention of corruption that could have involved him was unsubstantiated, and so remote as far as he was concerned, as not to enter the scales of evaluation at all. The gist of the critique against him lay elsewhere, namely, an alleged lack of independence and impartiality.
3) A series of complaints in this regard were made by an Advocate – whom I shall not name for reasons of confidentiality. The judges response though dealt adequately with the complaints. The Board noted that the particular Advocate had laid complaints against every judge in the Court of Appeal, all basically to the effect that they are unfairly hostile to him and discriminate against him and therefore against his clients. Some of these complaints were even sent on to the United Nations, the International Criminal Court and other bodies. Clearly there has been a complete breakdown of trust and professional respect between the Advocate concerned and the judiciary, with negative consequences all around. The situation calls for intervention by the Law Society of Kenya (LSK) with a view to achieving an appropriate remedy. The Board will contact the LSK in this respect. It is not in a position to make a finding against the judge in respect of these complaints.
4) Another complaint alleged inconsistency in the manner in which the judge dealt with two separate cases involving employment rights, an inconsistency, it was said, that could be explained only by unprincipled pro-employer bias. The Board was not persuaded that the two cases could be reconciled in the manner argued for by the judge, and could appreciate why employees could feel that they could not rely on the courts for fair and consistent treatment. It was also disturbed by the judge’s apparent lack of capacity for introspection and objective analysis in the matter.
5) A further complaint followed from the well known Rai case Civil Application No. Nai 307 of 2003 (154/03 UR), in which the principal judgment of a five-member Court of Appeal bench presided over by the judge, was given by the judge. This was a case where the presiding judge in the first appeal, a retired Judge of Appeal, had acted in what on the face of it was a serious conflict of interest situation, giving rise to a strong and reasonable perception of bias. In essence, the issue was whether the Court of Appeal should re-open a matter in which it had given a final determination, on the grounds that the interests of justice so required. The Court decided that in the special conditions of Kenya the overall need for finality had to take precedence over the interests of justice in a particular matter. The Board was not fully persuaded of the objectivity displayed by the Court, either in the reasons carefully spelt out in the judgment or by the answers given in the interview.
Recent precedent in Kenya had pointed to the right of the Court of Appeal to re-open a concluded matter if very exceptional circumstances existed. The well-known Pinochet case in the House of Lords in England had established that where a judge hearing a matter had had an interest, recusal had been obligatory, and a failure to step down had rendered the proceedings a nullity. During the interview it became clear that a major factor which had influenced the judges had been that the impugned judge had sought to use the application to re-open the matter as a platform for redeeming his honor by telling what he had seen as his side of the story.
It may have seemed to the judges that this would have led to an inappropriate and unseemly battle been fought out in a manner that would reflect negatively on the dignity of the Court. Whatever the reason, the Court both refused the application of the impugned judge to submit his own affidavit, and ruled in favor of absolute finality, thus putting an end to the matter once and for all. The Board was left with the strong impression that the Court had not started with the law and ended with the result. Rather, it had for reasons of expediency maneuvered the law in such a manner as to achieve a desired result, namely, to avoid having any dirty judicial laundry washed in public, even if this meant that a manifest injustice perpetrated by a member of the judiciary against a litigant would not be faced up to. The inevitable consequence was to further a public perception that in order to evade examining charges against one of its former members, the judiciary would re-interpret its own precedent, obliterate the charge that court processes had been tainted and leave the apparently wronged litigant out in the cold.
6) A large portion of the interview was taken up with suggestions that in a series of cases with high political importance, the judge had shown a manifest lack of impartiality, bending the law to favour the incumbent President. Members of the Board referred to a number of well known cases, the most prominent of which involved an attempt by a presidential candidate, Mr. Matiba, to submit a petition alleging irregularities in a recently concluded presidential election.
7) The Board was not convinced by the explanation given by the judge in the Matiba 1 appeal as to how, in the light of an express statutory provision excluding any appeal from decisions of the electoral court, his Court could assume jurisdiction to hear the appeal at all. The facts of the case hardly cried out for some kind of remedy against a patent injustice. On the contrary, the appeal in this case was sought against a common-sense and eminently reasonable finding by the appropriate electoral court to the effect that, because Mr. Matiba was paralysed, he could authorize his wife to sign his petition on his behalf. Then, having assumed jurisdiction, the Court of Appeal in Matiba 2 considered the substance of the challenge to the petition. It held that the provision that the petition shall be signed personally by the petitioner had to be read in a peremptory and totally literal way that excluded any possibility of signature by anyone else in any circumstances, even where the petitioner was unable to sign for himself because of physical incapacity.
8) The Board was astonished by the totally unpersuasive technicism of the principal judgment. The Board was even more startled by the terms and spirit of the concurring judgment offered by the judge. The judge’s concurrence went well beyond merely expressing support for the technical correctness of the main judgment. In addition to the concurrence reinforcing the main judgement’s defiance of common sense and closing down of space for democratic contestation, it gratuitously showed grave disrespect for disabled people. This is what it said “Mr. Kariuki asked during the arguments what a Kenyan without both hands and who wants to file a petition is supposed to do. The answer to that question, must await the appearance of such a Kenyan in these courts and a mode adopted by him in executing his petition. In any case, Mr. Matiba was not in that condition. If he were he would have no business wanting to be the President of Kenya.”
The judgment went on to castigate the petitioner in an ungenerous and uncalled-for manner that manifested no sensitivity to the fact that he could well have been paralysed as a result of torture, and appeared to curry favour with the incumbent President. The relevant portion of the Judge’s concurring judgment read : "....
9) The judge was also challenged over a series of decisions he had given in other highly publicized political matters, in all of which he appeared to lean in favour of authoritarian repression rather than open up pathways for democratic expression. A particularly egregious aspect of one of these matters was that the President had publicly, and correctly as it turned out, predicted an outcome pleasing to himself, without the judge responding publicly in any way to what had been open humiliation of his office.
10) There was consensus amongst members of the Board on a number of positive features in the judge’s career. He had given many years of service to the judiciary. He presented highly credible evidence of having been treated in a disrespectful manner by the then President in his early years on the bench, at a time of the one-party state, when signs of independence, judicial or otherwise, were severely responded to. He has undoubtedly contributed in a multitude of signal ways to the life of the judiciary.
11) Equally, there was consensus amongst members of the Board with regard to certain negative features. In particular, it was agreed that the judge had played an active role in frustrating rather than enhancing judicial scrutiny of alleged electoral irregularity, that he had manifested undue partiality in favour of the authorities at a time of severe political repression in the country, and that he had not held back from using his judicial authority to manipulate the law in order to achieve a result that favored impunity, limited democratic expression and curtailed freedom.
12) The Board divided, however, in relation to how the positive and negative features should be balanced out, more especially with regard to how the manifest failures of the judge in the past impacted on his suitability to continue serving on the bench. A substantial majority came to the conclusion that the negative impact of the way in which the judge had adjudicated at a time when his objectivity and impartiality were being tested, was profound and had contributed significantly and in a lasting way to the loss of public confidence in the judiciary in matters where powerful political figures were involved. These members also felt that the judge had not shown sufficient capacity for introspection and an ability to analyse in an objective manner, the severe judicial failures for which he had been responsible at a difficult time in the life of the nation. The judge on his own admission stated that they had failed Kenyans and victims of the Nyayo House torture chambers. But he showed inadequate appreciation of how deeply and negatively the actual judgments he had delivered had impacted on public confidence in the fairness of the judiciary.
13) A minority of members, on the other hand, were of the view that the manner in which he had adjudicated had to be seen in the context of the repression of the times; that he was not a corrupt judge; that he had made many positive contributions to the judiciary over the years and that he still had a major contribution to make in the context of the new constitutional dispensation.
14) However, the decision of the Board, by a very substantial majority, with two members dissenting is that the Judge is NOT suitable to continue to serve. That, therefore, is the Determination of the Board.
15) At the same time the Board wishes to highlight a total absence of any instances relating to corruption in regard to the judge, and in regard to lack of impartiality outside the Rai case and the politically-based judgments cited above. The Board therefore unanimously recommends that appropriate ways be found, if the judge so wishes, for society to benefit from the contributions that the judge will still be able to make in future in terms of facilitating access to justice and learning from the positive and negative aspects of judicial life in the past.
16) The judge has the right to apply for review under Section 22 of the Act, on the grounds upon which the judge may seek a review before the Board. Otherwise the decision of the Board is final and not appealable. [/b] [/quote]
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Post by OtishOtish on Aug 4, 2012 5:35:34 GMT 3
Job: As always, we are grateful that there are folks like you who take the time and slog away to make sure that these %$%$ are removed from the bench.
%$%$: I can't use the word in a family-oriented forum.
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Post by job on Aug 4, 2012 6:14:56 GMT 3
Job: As always, we are grateful that there are folks like you who take the time and slog away to make sure that these %$%$ are removed from the bench. %$%$: I can't use the word in a family-oriented forum. Thanks buddy. I can count on you that the ICC updates and analyses are dissected and laid asunder.
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Post by b6k on Aug 4, 2012 11:39:33 GMT 3
b6k,Ooops, pole for waiting too long. I was engaged a lot...been quite busy. Take it from me - I enumerated in black and white right here just why Justice Omollo should not be part and parcel of the reformed Judicary, leave alone lead it. That's to be found in the thread on recruitment of the CJ - where I consistently pitched for Dr. Mutunga...I'll try pull it when I find time. Remember, all that came way ahead of the vetting for High Court Judges... When that second round of vetting came, I posted right here the compelling case against Omollo made by the vetting board. I didn't just remotely provide a link - but painstakingly copied and pasted the entire wordings - highlighting (in bold) all important aspects to showcase why Omollo wasn't fit. Did b6k feel I should belabor that eloquent argument by the vetting board with yet another post? Wouldn't I be repeating the same same points highlighted? Why do you think I was highlighting these 16 points - some in bold - against Omollo? Let's be real and honest! I still don't get your point b6k...is this a genuine miscommunication or something else? The good thing - despite respecting all valid opinions, I'm never a prisoner to mischievous (or misguided) ones. Where's the beef pal? Kama haiko haiko! Scroll to the second-last post below. (Reminder: It was Job posting and emboldening it. jukwaa.proboards.com/index.cgi?board=general&action=display&thread=5500&page=19KENYA JUDGES AND MAGISTRATES VETTING BOARD
DETERMINATIONS
CONCERNING
THE JUDGES OF THE COURT OF APPEAL PANEL FINDINGS AND DECISION The Board’s Determinations in regard to the 9 judges of the Court of Appeal subject to vetting are as followsI: Honourable Justice Riaga Omollo.1) Hon. Justice Omollo was interviewed on 23rd February, 2012. Justice Omollo started his career in the Judiciary as a Magistrate posted to a rural area, to becoming the senior-most judicial officer prior to the establishment of the Supreme Court. He is experienced and technically-adept and has made a major contribution to reforming and speeding up the processes of civil litigation. He has all the general qualities of competence and authority expected of a judge (though it should be mentioned that there were moments during the interview where forcefulness seemed to border on showing a streak of authoritarian impatience).
2) At the outset it should be stressed that the issue before the Board was not whether the judge had been corrupt. The only mention of corruption that could have involved him was unsubstantiated, and so remote as far as he was concerned, as not to enter the scales of evaluation at all. The gist of the critique against him lay elsewhere, namely, an alleged lack of independence and impartiality.
3) A series of complaints in this regard were made by an Advocate – whom I shall not name for reasons of confidentiality. The judges response though dealt adequately with the complaints. The Board noted that the particular Advocate had laid complaints against every judge in the Court of Appeal, all basically to the effect that they are unfairly hostile to him and discriminate against him and therefore against his clients. Some of these complaints were even sent on to the United Nations, the International Criminal Court and other bodies. Clearly there has been a complete breakdown of trust and professional respect between the Advocate concerned and the judiciary, with negative consequences all around. The situation calls for intervention by the Law Society of Kenya (LSK) with a view to achieving an appropriate remedy. The Board will contact the LSK in this respect. It is not in a position to make a finding against the judge in respect of these complaints.
4) Another complaint alleged inconsistency in the manner in which the judge dealt with two separate cases involving employment rights, an inconsistency, it was said, that could be explained only by unprincipled pro-employer bias. The Board was not persuaded that the two cases could be reconciled in the manner argued for by the judge, and could appreciate why employees could feel that they could not rely on the courts for fair and consistent treatment. It was also disturbed by the judge’s apparent lack of capacity for introspection and objective analysis in the matter.
5) A further complaint followed from the well known Rai case Civil Application No. Nai 307 of 2003 (154/03 UR), in which the principal judgment of a five-member Court of Appeal bench presided over by the judge, was given by the judge. This was a case where the presiding judge in the first appeal, a retired Judge of Appeal, had acted in what on the face of it was a serious conflict of interest situation, giving rise to a strong and reasonable perception of bias. In essence, the issue was whether the Court of Appeal should re-open a matter in which it had given a final determination, on the grounds that the interests of justice so required. The Court decided that in the special conditions of Kenya the overall need for finality had to take precedence over the interests of justice in a particular matter. The Board was not fully persuaded of the objectivity displayed by the Court, either in the reasons carefully spelt out in the judgment or by the answers given in the interview.
Recent precedent in Kenya had pointed to the right of the Court of Appeal to re-open a concluded matter if very exceptional circumstances existed. The well-known Pinochet case in the House of Lords in England had established that where a judge hearing a matter had had an interest, recusal had been obligatory, and a failure to step down had rendered the proceedings a nullity. During the interview it became clear that a major factor which had influenced the judges had been that the impugned judge had sought to use the application to re-open the matter as a platform for redeeming his honor by telling what he had seen as his side of the story.
It may have seemed to the judges that this would have led to an inappropriate and unseemly battle been fought out in a manner that would reflect negatively on the dignity of the Court. Whatever the reason, the Court both refused the application of the impugned judge to submit his own affidavit, and ruled in favor of absolute finality, thus putting an end to the matter once and for all. The Board was left with the strong impression that the Court had not started with the law and ended with the result. Rather, it had for reasons of expediency maneuvered the law in such a manner as to achieve a desired result, namely, to avoid having any dirty judicial laundry washed in public, even if this meant that a manifest injustice perpetrated by a member of the judiciary against a litigant would not be faced up to. The inevitable consequence was to further a public perception that in order to evade examining charges against one of its former members, the judiciary would re-interpret its own precedent, obliterate the charge that court processes had been tainted and leave the apparently wronged litigant out in the cold.
6) A large portion of the interview was taken up with suggestions that in a series of cases with high political importance, the judge had shown a manifest lack of impartiality, bending the law to favour the incumbent President. Members of the Board referred to a number of well known cases, the most prominent of which involved an attempt by a presidential candidate, Mr. Matiba, to submit a petition alleging irregularities in a recently concluded presidential election.
7) The Board was not convinced by the explanation given by the judge in the Matiba 1 appeal as to how, in the light of an express statutory provision excluding any appeal from decisions of the electoral court, his Court could assume jurisdiction to hear the appeal at all. The facts of the case hardly cried out for some kind of remedy against a patent injustice. On the contrary, the appeal in this case was sought against a common-sense and eminently reasonable finding by the appropriate electoral court to the effect that, because Mr. Matiba was paralysed, he could authorize his wife to sign his petition on his behalf. Then, having assumed jurisdiction, the Court of Appeal in Matiba 2 considered the substance of the challenge to the petition. It held that the provision that the petition shall be signed personally by the petitioner had to be read in a peremptory and totally literal way that excluded any possibility of signature by anyone else in any circumstances, even where the petitioner was unable to sign for himself because of physical incapacity.
8) The Board was astonished by the totally unpersuasive technicism of the principal judgment. The Board was even more startled by the terms and spirit of the concurring judgment offered by the judge. The judge’s concurrence went well beyond merely expressing support for the technical correctness of the main judgment. In addition to the concurrence reinforcing the main judgement’s defiance of common sense and closing down of space for democratic contestation, it gratuitously showed grave disrespect for disabled people. This is what it said “Mr. Kariuki asked during the arguments what a Kenyan without both hands and who wants to file a petition is supposed to do. The answer to that question, must await the appearance of such a Kenyan in these courts and a mode adopted by him in executing his petition. In any case, Mr. Matiba was not in that condition. If he were he would have no business wanting to be the President of Kenya.”
The judgment went on to castigate the petitioner in an ungenerous and uncalled-for manner that manifested no sensitivity to the fact that he could well have been paralysed as a result of torture, and appeared to curry favour with the incumbent President. The relevant portion of the Judge’s concurring judgment read : "....
9) The judge was also challenged over a series of decisions he had given in other highly publicized political matters, in all of which he appeared to lean in favour of authoritarian repression rather than open up pathways for democratic expression. A particularly egregious aspect of one of these matters was that the President had publicly, and correctly as it turned out, predicted an outcome pleasing to himself, without the judge responding publicly in any way to what had been open humiliation of his office.
10) There was consensus amongst members of the Board on a number of positive features in the judge’s career. He had given many years of service to the judiciary. He presented highly credible evidence of having been treated in a disrespectful manner by the then President in his early years on the bench, at a time of the one-party state, when signs of independence, judicial or otherwise, were severely responded to. He has undoubtedly contributed in a multitude of signal ways to the life of the judiciary.
11) Equally, there was consensus amongst members of the Board with regard to certain negative features. In particular, it was agreed that the judge had played an active role in frustrating rather than enhancing judicial scrutiny of alleged electoral irregularity, that he had manifested undue partiality in favour of the authorities at a time of severe political repression in the country, and that he had not held back from using his judicial authority to manipulate the law in order to achieve a result that favored impunity, limited democratic expression and curtailed freedom.
12) The Board divided, however, in relation to how the positive and negative features should be balanced out, more especially with regard to how the manifest failures of the judge in the past impacted on his suitability to continue serving on the bench. A substantial majority came to the conclusion that the negative impact of the way in which the judge had adjudicated at a time when his objectivity and impartiality were being tested, was profound and had contributed significantly and in a lasting way to the loss of public confidence in the judiciary in matters where powerful political figures were involved. These members also felt that the judge had not shown sufficient capacity for introspection and an ability to analyse in an objective manner, the severe judicial failures for which he had been responsible at a difficult time in the life of the nation. The judge on his own admission stated that they had failed Kenyans and victims of the Nyayo House torture chambers. But he showed inadequate appreciation of how deeply and negatively the actual judgments he had delivered had impacted on public confidence in the fairness of the judiciary.
13) A minority of members, on the other hand, were of the view that the manner in which he had adjudicated had to be seen in the context of the repression of the times; that he was not a corrupt judge; that he had made many positive contributions to the judiciary over the years and that he still had a major contribution to make in the context of the new constitutional dispensation.
14) However, the decision of the Board, by a very substantial majority, with two members dissenting is that the Judge is NOT suitable to continue to serve. That, therefore, is the Determination of the Board.
15) At the same time the Board wishes to highlight a total absence of any instances relating to corruption in regard to the judge, and in regard to lack of impartiality outside the Rai case and the politically-based judgments cited above. The Board therefore unanimously recommends that appropriate ways be found, if the judge so wishes, for society to benefit from the contributions that the judge will still be able to make in future in terms of facilitating access to justice and learning from the positive and negative aspects of judicial life in the past.
16) The judge has the right to apply for review under Section 22 of the Act, on the grounds upon which the judge may seek a review before the Board. Otherwise the decision of the Board is final and not appealable. [/b] [/quote][/quote] Job, nothing sinister on my part. That's just my attempt at keeping you honest, to paraphrase Anderson Cooper's segment on AC 360. Your posts are highly informative on Jukwaa which is precisely why I voted for you as blogger of the year ;D. Had to make sure your critical eye isn't trained on one side
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Post by phil on Sept 21, 2012 12:20:05 GMT 3
Judge's vetting board upholds unsuitability of PNU sympathetic Judge Jeanne Gacheche to continue serving as a Judge thus FIRED!
Similarly, vetting Board rules Justice Joyce Khaminwa is not fit to serve in the Judiciary
Reprieve for Justices Mohammed Ibrahim, Roselyn Nambuye as vetting board reinstate them, orders fresh vetting.
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Post by mzee on Sept 21, 2012 13:58:03 GMT 3
Very good let's throw them out Judge Koome survived by a whisker.
I can't wait for the day Muga Apondi of the Dalamere fame is kicked out.
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Post by kamalet on Sept 21, 2012 16:54:19 GMT 3
Judge's vetting board upholds unsuitability of PNU sympathetic Judge Jeanne Gacheche to continue serving as a Judge thus FIRED! Similarly, vetting Board rules Justice Joyce Khaminwa is not fit to serve in the Judiciary Reprieve for Justices Mohammed Ibrahim, Roselyn Nambuye as vetting board reinstate them, orders fresh vetting. now under what law will the judges be vetted a fresh??? If the board nullifies its decision, it means just that....they were wrong to dismiss and must reinstate. Merits of the cases notwithstanding!
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Post by jakaswanga on Oct 3, 2012 12:23:11 GMT 3
Chair Sharad Rao categorically states he wont be rendered dormant by the rogue ruling of judge Warsame! But Rao was careful to exonerate the CJ from charges of interfering with the boards work! And yet he said this of the judges --selected by the CJ to officiate on the fate of the vetting board: They can not be players and referees at the same timeThe CJ seems to have been of a different opinion when he let Warsame combine the two roles! ----------------------- More on the unfolding controversy: www.standardmedia.co.ke/?articleID=2000067183&story_title=Opinion:%20Spare%20us%20drama%20on%20judges%20vetting,%20just%20clean%20up%20mess Stringent timelines for resolving electoral disputes may be untenable Minister, LSK fault court for halting vetting board Vetting board faces weighty constitutional hurdles The change we need begins when we become good followers SHARE THIS STORY: spare us the drama Updated Saturday, September 29 2012 at 20:57 GMT+3 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 --------------------- more newsupdate.co.ke/home/?tag=vetting
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Post by jakaswanga on Oct 3, 2012 13:48:30 GMT 3
Chair Sharad Rao categorically states he wont be rendered dormant by the rogue ruling of judge Warsame! But Rao was careful to exonerate the CJ from charges of interfering with the boards work! And yet he said this of the judges --selected by the CJ to officiate on the fate of the vetting board: They can not be players and referees at the same timeThe CJ seems to have been of a different opinion when he let Warsame combine the two roles! www.nation.co.ke/News/judges+vetting+board+reject+court+order+to+stop+work/-/1056/1522224/-/5q5xh8/-/index.htmlHomeNews Judges vetting board reject court order to stop work By LUCAS BARASA (lbarassa@ke.nationmedia.com) Posted Monday, October 1 2012 at 15:07 In Summary Board holds that it is protected by the constitution and the courts have no jurisdiction over its work. Judge Mohammed Warsame's order described as null and void. The panel set up to vet Kenyan judges suitability for office on Monday rejected a court order stopping its work for 14 days. Read (High Court halts vetting of judges and magistrates)The Judges and Magistrates Vetting Board described High Court Judge Mohammed Warsame’s ruling as null, void and unconstitutional.The board said the courts cannot be both players and referee in the matter of vetting judges and magistrates. The Mr Sharad Rao led board said its work is protected in by the Constitution from any external interference including that from the courts. “Section 23 (2) of the Sixth Schedule to the Constitution has expressly ousted the Courts jurisdiction as a way of insulating the vetting process against manipulation by the judiciary,” Mr Rao who read a statement on behalf of the board said.The High Court issued interim orders stopping the vetting in a case filed by a human rights lobby and two petitioners to challenge the sacking of Supreme Court judge Mohammed Ibrahim and Court of Appeal judge Roselyn Nambuye.Judges Mohammed Warsame and George Odunga granted the interim orders sought while Mr Justice George Kimondo dissented. Justice Kimondo said the orders sought, if granted, were far-reaching and would bring to a complete halt operations of the Vetting Board. Share This Story He said it would be fair if all the parties in the case were heard before the orders were granted. But colleagues Warsame and Odunga said they had issued the injunction so that the aggrieved party was not helpless."This is meant to give an interim protection so as not to expose others to preventable perils or risks by inaction or omission, " the judges said. The petition was filed by the Centre for Human Rights and Democracy, Mr Richard Omanyala and Bishop Francis Oziova.The judges said that the matters raised by the three petitioners needed further inquiry. On Monday, the board said it does not accept that the judiciary has jurisdiction to sit in judgment over its work. “We have been given a mandate by the people of Kenya, through the Constitution, to see the vetting process through to speedy conclusion. The clear provisions of the Constitution were designed to prevent precisely the situation which has arisen, namely, that members of the judiciary would seek to obstruct the very process in terms of which they were themselves to be vetted,” Mr Rao said. Mr Rao regretted that Mr Justice Mohamed Warsame who was due to be interviewed by the board on October 16, issued a stay “which purported to paralyse all operations of the board for 14 days, severely interfering with the board’s work.”The board said the order was issued despite a request that Justice Warsame recuse himself and that the court first determine the issue of whether it has jurisdiction to hear the matter at all to page 2. ------------------soap at the appex of the judiciary?? Not a good omen.
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Post by kamalet on Oct 3, 2012 14:56:27 GMT 3
The Rao board is not being clever in its handling of the matter.
If Warsame was to appear before them next Thursday, if the board finds him unsuitable for this decision then they will have played into his hands.
I have held the view that the board should have appealed the injunction and also moved the scheduled hearing of the Warsame matter until the case is heard and determined. As it stands the case has not been heard and only an injuction to stop the board from re-hearing the Ibrahim case and allowed the matter decided and which would have been inevitably in the boards favour!
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Post by mwalimumkuu on Oct 3, 2012 17:30:55 GMT 3
The Rao board is not being clever in its handling of the matter. If Warsame was to appear before them next Thursday, if the board finds him unsuitable for this decision then they will have played into his hands. I have held the view that the board should have appealed the injunction and also moved the scheduled hearing of the Warsame matter until the case is heard and determined. As it stands the case has not been heard and only an injuction to stop the board from re-hearing the Ibrahim case and allowed the matter decided and which would have been inevitably in the boards favour! Kamale, I actually think that this Warsame guy has put the vetting board in a very awkward position than the board seems to realize. Could this have been Mutunga's plot all along? I will be waiting to see how this ends with a lot of interest.
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Post by b6k on Oct 3, 2012 23:48:52 GMT 3
The Rao board is not being clever in its handling of the matter. If Warsame was to appear before them next Thursday, if the board finds him unsuitable for this decision then they will have played into his hands. I have held the view that the board should have appealed the injunction and also moved the scheduled hearing of the Warsame matter until the case is heard and determined. As it stands the case has not been heard and only an injuction to stop the board from re-hearing the Ibrahim case and allowed the matter decided and which would have been inevitably in the boards favour! Kamale, I actually think that this Warsame guy has put the vetting board in a very awkward position than the board seems to realize. Could this have been Mutunga's all along? I will be waiting to see how this ends with a lot of interest. Mwalimumkuu, I believe you may be missing a word when you say: Could this have been Mutunga's <insert word> all along? Ama?
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Post by mwalimumkuu on Oct 4, 2012 3:24:14 GMT 3
Kamale, I actually think that this Warsame guy has put the vetting board in a very awkward position than the board seems to realize. Could this have been Mutunga's all along? I will be waiting to see how this ends with a lot of interest. Mwalimumkuu, I believe you may be missing a word when you say: Could this have been Mutunga's <insert word> all along? Ama? Yeah, you right, just added 'plot' on there. My little hand-held gadget lets me down lots of times. Thanks though.
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Post by phil on Oct 30, 2012 12:11:40 GMT 3
JUST IN: High Court temporarily reinstates judges found unfit for office after vetting; says court has jurisdiction to supervise vetting board. Five Judge bench rules that the High Court has jurisdiction to hear case filed against the Judges and Magistrates Vetting Board.
Offer lifeline to Justices Gacheche, Omollo, Ibrahim, Nambuye and Nyamu.
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Post by podp on Oct 30, 2012 15:23:10 GMT 3
JUST IN: High Court temporarily reinstates judges found unfit for office after vetting; says court has jurisdiction to supervise vetting board. Five Judge bench rules that the High Court has jurisdiction to hear case filed against the Judges and Magistrates Vetting Board. Offer lifeline to Justices Gacheche, Omollo, Ibrahim, Nambuye and Nyamu. what is the popular saying.....the more things change the more....
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Post by kamalet on Oct 30, 2012 15:49:03 GMT 3
JUST IN: High Court temporarily reinstates judges found unfit for office after vetting; says court has jurisdiction to supervise vetting board. Five Judge bench rules that the High Court has jurisdiction to hear case filed against the Judges and Magistrates Vetting Board. Offer lifeline to Justices Gacheche, Omollo, Ibrahim, Nambuye and Nyamu. ...I am not sure what Phil suggests is correct! The correct position is that the court has temporarily stopped the President from de-gazetting the judges recommended for sacking. The vetting board as conceived without any form of supervision was in my view wrong for it left the board open to settle scores or wrongly condemn judges without a hope of a review of the actions of the board. The high court and the judicial system should ensure that they do not use their supervisory powers they claim to have to subvert justice!
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Post by OtishOtish on Oct 30, 2012 16:09:14 GMT 3
So much for the changes in the judiciary. According to this funny interpretation of the constitution, under which the judiciary can interfere with the Vetting Board, the board can throw out a judge only to have colleagues later reinstate him or her. The question now is which of the sacked judges has enough friends on the bench ot be reinstated when there cases are heard.
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Post by b6k on Oct 30, 2012 16:39:52 GMT 3
Slowly but surely it becomes clear why revolution is the only guaranteed way to get a clean slate....
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Post by phil on Oct 30, 2012 18:33:15 GMT 3
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Post by OtishOtish on Oct 30, 2012 18:52:18 GMT 3
Sixth Schedule to the Constitution of Kenya s23
(1) Within one year after the effective date, Parliament shall enact legislation, which shall operate despite Article 160, 167 and 168, establishing mechanisms and procedures for vetting, within a timeframe to be determined in the legislation, the suitability of all judges and magistrates who were in office on the effective date to continue to serve in accordance with the values and principles set out in Articles 10 and 159
(2) A removal, or a process leading to the removal, of a judge, from office by virtue of the operation of legislation contemplated under subsection (1) shall not be subject to question in, or review by, any court.
That seems clear enough.
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Post by jakaswanga on Oct 30, 2012 23:49:36 GMT 3
Sixth Schedule to the Constitution of Kenya s23 (1) Within one year after the effective date, Parliament shall enact legislation, which shall operate despite Article 160, 167 and 168, establishing mechanisms and procedures for vetting, within a timeframe to be determined in the legislation, the suitability of all judges and magistrates who were in office on the effective date to continue to serve in accordance with the values and principles set out in Articles 10 and 159
(2) A removal, or a process leading to the removal, of a judge, from office by virtue of the operation of legislation contemplated under subsection (1) shall not be subject to question in, or review by, any court.That seems clear enough. The deep state within the legal apparatus has fought very hard, and here they are arresting the vetting process, even if only partially. I have been reading the vetting report of some of these judges, like Jean Gacheche and Nambale! and incidentally the Ibrahim friend of Dr. Studds. Anybody who wants these rotten apples on the table is looking to disease the whole body of the judiciary. If these kind of people are still on the bench, and the elections is disputed next March, we all know nobody will take the courts seriously. By the time Warsame returns a judgement, Kenya would have gone through three election cycles! or convulsions! Mutunga should crack a whip, or he be cracked.
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Post by OtishOtish on Oct 31, 2012 1:25:40 GMT 3
Mutunga should crack a whip, or he be cracked. Mutunga crack a whip? Remember there was a guy who was sent home but apparently allowed to sneak back into office and decide a zillion cases in a day? What has Mutunga done so far about this case dragging on and on? One of the reasons that Kenyans' faith in the judiciary has taken a slight upward step has been the the results coming out of the Vetting Board. And now judges are stating that, contrary to what is clearly stated in the law, they have the final say on ultimately goes home. Who would have expected Impunity to come out of this left field ?!? Back to Mutunga: I think it is time to look beyond the smoke, mirrors, and glitter from his studs and ask what substantial changes he has actually accomplished in the judiciary. Real changes, not just getting new uniforms for the judges. Every thing about every aspect of GoK seems to be a joke or destined to become a joke. Where do people go when the High Court itself makes nonsense of the law and issues a "mta do?". And Kenyans will probably just cheerfully take it right in the ... sorry, can't remember what I wanted to write there. As for the Vetting Board, it's been put in an untenable position and should simply resign en masse and go home. There's little point in going on with a process that ends up as a circus.
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Post by kamalet on Oct 31, 2012 8:24:59 GMT 3
Sixth Schedule to the Constitution of Kenya s23 (1) Within one year after the effective date, Parliament shall enact legislation, which shall operate despite Article 160, 167 and 168, establishing mechanisms and procedures for vetting, within a timeframe to be determined in the legislation, the suitability of all judges and magistrates who were in office on the effective date to continue to serve in accordance with the values and principles set out in Articles 10 and 159
(2) A removal, or a process leading to the removal, of a judge, from office by virtue of the operation of legislation contemplated under subsection (1) shall not be subject to question in, or review by, any court.That seems clear enough. Thank you Phil for the link to the ruling by the judges as it allows one to read what the judges said rather than the misreporting by the media. I took the time to read the 77 page ruling last night and I must admit that the judges have argued their position well. Their discussion on the ouster clause that Otishotish quotes was well argued and the judges conceded that the HC cannot review a ruling of the board but only in instances they listed out that included the board acting beyond its mandate and matters of the rights of those being vetted.
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Post by kamalet on Oct 31, 2012 13:49:36 GMT 3
The vetting board has now come back making their own kind of noise and as they, they continue to make mistakes!
Deciding to overlook the court of appeal when appealing the decision of the high court and going to the supreme court only shows their poor regard for the law the same thing they are punishing and sacking judges for!!
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