Post by jakaswanga on Aug 30, 2018 21:18:44 GMT 3
DAVID MARAGA AND THE WARSAME POISONED INHERITANCE
ONCE UPON A TIME ON JUKWAA, THREAD HON CJ WILY MUTUNGA IS A FUNNY MAN, there were some extraordinary insights. --What had infested the head of Wily Mutunga to grant Judge Warsame the sword with which to slit the throat of the vetting board!?
And why had the JSC gone along with the 'scumbag' decision, a few murmurs against registered yes! Very soon we will do a FF to see the rebound, or as the aboriginals say, boomerang.
jukwaa.proboards.com/thread/7367/hon-mutunga-cj-funny-man
Having said this, the decision by the Rao board to declare a court ruling null and void is equally wrong. The board cannot purport to ignore a court order however unpopular or wrong it is perceived to be. If the board is aggrieved by the ruling, it has the right to appeal to the court of appeal or even the Supreme Court but cannot decide to ignore the ruling.
This statement obey the Rao team and the ignoring of court orders by teachers and doctors and the government sets very dangerous precedents. If allowed, then there will be judicial anarchy in this country where court orders are routinely ignored.
Disagree with a ruling but for heavens sake do not ignore the ruling!Interesting points, Kamalet. What happens if the matter goes to the Court of Appeal or Supreme Court, and Warsame orders them to stop immediately? Does, say, the Supreme Court go along, to shows respect for the law, pending new decisions from .... ?
Keep in mind that this board also vets judges in those two courts and that after a possible review (by the board by the board itself) of a case, the board's decision cannot be challenged in any court, including these two. As far as vetting goes, that arrangement would appear to put the Vetting Board above the those two courts, and to that extent, the board seems quite right to plough on unhindered. What else should the board do when the relevant laws pretty much state that no court can interfere with its work?
Mutunga has gone some good things in the judiciary, and he still has a great deal of goodwill among Kenyans. But he's now making huge blunders, and he needs to step back from the daddy-knows-best mode. Otherwise we'll have a huge legal crisis at a time when we could most do without one.
That was OCTOBER 2012.
NOW FF TO AUGUST 2018
David Maraga insists, like Wily Mutunga, on Justice Warsame!? the scumbag who killed off the vetting board!
And the JSC fraternity and LSK nomited this Warsame, and pull rank to force Uhuru Kenyatta to swear him in!
And there is a war on corruption on which David Maraga supports! Just think a bit, you guys from law school!? introduction to elementary clear thinking! don't you see you are what they call in the USA madhafakasz!?
FOOTNOTESBut the son of Jomo is too never the best advised man in town, nor the best self-informed. Fellas like professor Githu were running him around in circles around the Judiciary, just like fellas like Kinyua, Rotich and Njoroge (CBK) are doing him with the economy --see interest rates and the rest of the debt machinations! (collapsing local sugar industry with wipe-out imports and then talking about youth employment!)
Court of appeal Judges! the college of Nestors! the Solomon brain-trust of the constitution of Kenya!
I deduce: they were paying Warsame back for his service in killing the vetting board. That board could have finished off many of their careers!
Who is fooling who in this town, Maraga!
DPP Haji may have, in the role of a rascal, thrown a club into the scumbag's nest to see how the gun powder smokes!
### FORMER LSK CHAIRMAN ERIC MUTUA tried a clear-head!
EH! Otishotish himslef, a member of the fraternity, mildly put it as Mutunga is a funny man. Me I just say scumbag! the whole rotten lot!
ONCE UPON A TIME ON JUKWAA, THREAD HON CJ WILY MUTUNGA IS A FUNNY MAN, there were some extraordinary insights. --What had infested the head of Wily Mutunga to grant Judge Warsame the sword with which to slit the throat of the vetting board!?
And why had the JSC gone along with the 'scumbag' decision, a few murmurs against registered yes! Very soon we will do a FF to see the rebound, or as the aboriginals say, boomerang.
jukwaa.proboards.com/thread/7367/hon-mutunga-cj-funny-man
The injunction was very wrong and Warsame should not have presided on the matter stopping the vetting board from doing its work.
Having said this, the decision by the Rao board to declare a court ruling null and void is equally wrong. The board cannot purport to ignore a court order however unpopular or wrong it is perceived to be. If the board is aggrieved by the ruling, it has the right to appeal to the court of appeal or even the Supreme Court but cannot decide to ignore the ruling.
This statement obey the Rao team and the ignoring of court orders by teachers and doctors and the government sets very dangerous precedents. If allowed, then there will be judicial anarchy in this country where court orders are routinely ignored.
Disagree with a ruling but for heavens sake do not ignore the ruling!
Keep in mind that this board also vets judges in those two courts and that after a possible review (by the board by the board itself) of a case, the board's decision cannot be challenged in any court, including these two. As far as vetting goes, that arrangement would appear to put the Vetting Board above the those two courts, and to that extent, the board seems quite right to plough on unhindered. What else should the board do when the relevant laws pretty much state that no court can interfere with its work?
Mutunga has gone some good things in the judiciary, and he still has a great deal of goodwill among Kenyans. But he's now making huge blunders, and he needs to step back from the daddy-knows-best mode. Otherwise we'll have a huge legal crisis at a time when we could most do without one.
NOW FF TO AUGUST 2018
President, CJ deadlock blamed for Mwilu court difficulties
By Kamau Muthoni | Published Thu, August 30th
Read more at: www.standardmedia.co.ke/article/2001293894/uhuru-maraga-stand-off-over-judicial-team
Matters have not been made better by the fact that the AG has not taken his seat on the JSC because the Chief Justice has insisted that the three presidential nominees be sworn in at the same time as Warsame. As a result, the JSC has been crippled because the three appointees as well as Warsame and the AG have not taken their places.
Yesterday, a JSC commissioner acknowledged the silent struggle.
According to the commissioner, the CJ has insisted that he will only swear in all the commissioners.
"The Chief Justice has insisted that he has to swear them in together. He cannot swear in the rest and leave out Warsame,” said the commissioner in confidence. The commissioner said JSC had written to the President on several occasions, asking him to gazette the Appeal Court judge, but he has not acted despite promising to do so. “The President is defying the Constitution and JSC has written to him several times and we even have responses, promising that he will gazette Warsame,” the commissioner added.
Those in the know claim that as constituted, the JSC could not decide Mwilu's case. However, Tom Ojienda, a commissioner of JSC, insisted that the commission's operations had not stalled as it had the required numbers.
ALSO READ:
Not my case! Chief Magistrate declines to halt DCJ Mwilu’s prosecution
He said although Mwilu was facing criminal charges, it did not stop her from conducting her business as the Deputy Chief Justice and a commissioner representing Supreme Court judges.
Quorum hitch
“There is no quorum hitch at JSC, we are conducting business as usual. Even the DCJ is still sitting as the JSC commissioner.
The fact that she has been taken to court does not mean she ceases to be a commissioner,” said Prof Ojienda.
On Tuesday at 7am, the CJ, who chairs the commission, Mwilu, Mercy Deche (vice-chairperson), Emily Ominde, Justice Aggrey Muchelule and Ojienda were in the Supreme Court’s boardroom.
By Kamau Muthoni | Published Thu, August 30th
Read more at: www.standardmedia.co.ke/article/2001293894/uhuru-maraga-stand-off-over-judicial-team
Matters have not been made better by the fact that the AG has not taken his seat on the JSC because the Chief Justice has insisted that the three presidential nominees be sworn in at the same time as Warsame. As a result, the JSC has been crippled because the three appointees as well as Warsame and the AG have not taken their places.
Yesterday, a JSC commissioner acknowledged the silent struggle.
According to the commissioner, the CJ has insisted that he will only swear in all the commissioners.
"The Chief Justice has insisted that he has to swear them in together. He cannot swear in the rest and leave out Warsame,” said the commissioner in confidence. The commissioner said JSC had written to the President on several occasions, asking him to gazette the Appeal Court judge, but he has not acted despite promising to do so. “The President is defying the Constitution and JSC has written to him several times and we even have responses, promising that he will gazette Warsame,” the commissioner added.
Those in the know claim that as constituted, the JSC could not decide Mwilu's case. However, Tom Ojienda, a commissioner of JSC, insisted that the commission's operations had not stalled as it had the required numbers.
ALSO READ:
Not my case! Chief Magistrate declines to halt DCJ Mwilu’s prosecution
He said although Mwilu was facing criminal charges, it did not stop her from conducting her business as the Deputy Chief Justice and a commissioner representing Supreme Court judges.
Quorum hitch
“There is no quorum hitch at JSC, we are conducting business as usual. Even the DCJ is still sitting as the JSC commissioner.
The fact that she has been taken to court does not mean she ceases to be a commissioner,” said Prof Ojienda.
On Tuesday at 7am, the CJ, who chairs the commission, Mwilu, Mercy Deche (vice-chairperson), Emily Ominde, Justice Aggrey Muchelule and Ojienda were in the Supreme Court’s boardroom.
And the JSC fraternity and LSK nomited this Warsame, and pull rank to force Uhuru Kenyatta to swear him in!
And there is a war on corruption on which David Maraga supports! Just think a bit, you guys from law school!? introduction to elementary clear thinking! don't you see you are what they call in the USA madhafakasz!?
FOOTNOTES
House adopts report barring JSC nominee Warsame
Thursday April 19 2018
Judge Mohamed Warsame
Court of Appeal Judge Mohammed Warsame. He was nominate to the Judicial Service Commission. FILE PHOTO | NATION MEDIA GROUP
In Summary
MPs accusing the Judiciary of interfering with their constitutional mandate.
On March 20, President Kenyatta forwarded Mr Warsame’s name to the House for vetting after his election.
By DAVID MWERE
The National Assembly has adopted a protest report by the Justice and Legal Affairs Committee blocking the appointment of Court of Appeal judge Mohammed Warsame to the Judicial Service Commission (JSC) on account that he was not vetted and approved by MPs.
The MPs ignored prohibitory orders served on House Speaker Justin Muturi by the High Court that Justice Warsame should not be vetted, pending the hearing and determination of the case JSC filed in court.
The move is likely to escalate hostilities between the National Assembly and the Judiciary, and may even extend to the Executive since the President Uhuru Kenyatta has been dragged in.
READ: Why lawyers oppose vetting of Judge Warsame
READ: JSC, MPs in row over vetting of Judge Warsame
NOMINATED
The two government institutions have been on each other’s case, with MPs accusing the Judiciary of interfering with their constitutional mandate.
In retaliation, the National Assembly has been reducing the budgetary allocation to the Judiciary.
Adoption of the protest report comes after the committee chaired by Baringo North MP William Cheptumo failed to vet Justice Warsame within 14 days as required by the Public Appointments (Parliamentary Approval) Act.
On March 20, President Kenyatta forwarded Mr Warsame’s name to the House for vetting after his election by Court of Appeal judges for the second time to the commission.
Mr Muturi would then submit the name to the Justice and Legal Affairs Committee.
COURT CASE
The committee was to conduct approval hearings and table the report within 14 days.
Committee chairman Cheptumo had on Tuesday admitted that his committee was unable to vet the nominee as required since JSC had filed a case in court and obtained prohibitory orders.
The JSC is opposed to vetting of the judge, saying it is unconstitutional. The hearing of the case starts on May 23.
“The committee is not in a position to vet the judge and submit a report as required by the law,” Mr Cheptumo said on Wednesday.
When the report came up for debate on Tuesday, the MPs, through Kirinyaga Central MP Munene Wambugu, an advocate of the High Court of Kenya, successfully amended it to remove a provision gagging the House from considering it until the court is done with the case.
ELECTED
But they could not marshal the required numbers to take a vote, pushing it to Wednesday (yesterday).
The commission — which employs judicial officers, among them judges and magistrates — argues that the judge was validly elected by Appeal Court judges to represent their interests and therefore there is no need of being vetted by MPs.
“Approval of Justice Warsame by Parliament is neither provided for in the Constitution nor in the Judicial Service Act 2011,” Chief Registrar of the Judiciary Anne Amadi said in the letter to Clerk of the National Assembly, Mr Michael Sialai.
Thursday April 19 2018
Judge Mohamed Warsame
Court of Appeal Judge Mohammed Warsame. He was nominate to the Judicial Service Commission. FILE PHOTO | NATION MEDIA GROUP
In Summary
MPs accusing the Judiciary of interfering with their constitutional mandate.
On March 20, President Kenyatta forwarded Mr Warsame’s name to the House for vetting after his election.
By DAVID MWERE
The National Assembly has adopted a protest report by the Justice and Legal Affairs Committee blocking the appointment of Court of Appeal judge Mohammed Warsame to the Judicial Service Commission (JSC) on account that he was not vetted and approved by MPs.
The MPs ignored prohibitory orders served on House Speaker Justin Muturi by the High Court that Justice Warsame should not be vetted, pending the hearing and determination of the case JSC filed in court.
The move is likely to escalate hostilities between the National Assembly and the Judiciary, and may even extend to the Executive since the President Uhuru Kenyatta has been dragged in.
READ: Why lawyers oppose vetting of Judge Warsame
READ: JSC, MPs in row over vetting of Judge Warsame
NOMINATED
The two government institutions have been on each other’s case, with MPs accusing the Judiciary of interfering with their constitutional mandate.
In retaliation, the National Assembly has been reducing the budgetary allocation to the Judiciary.
Adoption of the protest report comes after the committee chaired by Baringo North MP William Cheptumo failed to vet Justice Warsame within 14 days as required by the Public Appointments (Parliamentary Approval) Act.
On March 20, President Kenyatta forwarded Mr Warsame’s name to the House for vetting after his election by Court of Appeal judges for the second time to the commission.
Mr Muturi would then submit the name to the Justice and Legal Affairs Committee.
COURT CASE
The committee was to conduct approval hearings and table the report within 14 days.
Committee chairman Cheptumo had on Tuesday admitted that his committee was unable to vet the nominee as required since JSC had filed a case in court and obtained prohibitory orders.
The JSC is opposed to vetting of the judge, saying it is unconstitutional. The hearing of the case starts on May 23.
“The committee is not in a position to vet the judge and submit a report as required by the law,” Mr Cheptumo said on Wednesday.
When the report came up for debate on Tuesday, the MPs, through Kirinyaga Central MP Munene Wambugu, an advocate of the High Court of Kenya, successfully amended it to remove a provision gagging the House from considering it until the court is done with the case.
ELECTED
But they could not marshal the required numbers to take a vote, pushing it to Wednesday (yesterday).
The commission — which employs judicial officers, among them judges and magistrates — argues that the judge was validly elected by Appeal Court judges to represent their interests and therefore there is no need of being vetted by MPs.
“Approval of Justice Warsame by Parliament is neither provided for in the Constitution nor in the Judicial Service Act 2011,” Chief Registrar of the Judiciary Anne Amadi said in the letter to Clerk of the National Assembly, Mr Michael Sialai.
President Kenyatta nominates appeals court judge Warsame to JSC
Tuesday March 20 2018
The Justice and Legal Affairs committee of the National Assembly will vet Court of Appeal judge Mohamed Warsame for appointment to the Judicial Service Commission (JSC).
Justice Warsame’s vetting will be his first despite having been re-elected to the commission and comes after President Uhuru Kenyatta forwarded his name to the MPs Tuesday for consideration.
The committee chaired by Baringo North MP Mr William Cheptumo will have 14 days from yesterday, when House speaker Justin Muturi directed that the committee finds the suitability of the Judge and present its report for either adoption or rejection.
Justice Warsame was re-elected by the Court of Appeal judges to represent them in the commission two weeks ago. He got 16 votes against four for Justice Wanjiru Karanja.
His consideration comes after the committee successfully vetted other nominees to the commission, which is in charge of recruiting judges and magistrates and also takes care of their welfare including those of judiciary employees.
Former National Assembly Clerk Mr Patrick Gichohi (Public Service Commission), former Agriculture Cabinet Secretary Mr Felix Koskei and former Kenyatta University vice chancellor Prof Olive Mugenda were vetted by the committee as representatives of the public following their nomination.
The vetting of the judge will open the window for a similar process of other JSC representatives from the Law Society of Kenya (LSK), Magistrates’ Court and High Court.
The 11th parliament did not vet these nominees in what leader of majority in the National Assembly Mr Aden Duale described a serious oversight.
“The Justice and Legal Affairs committee of the 11th parliament has never explained why it never vetted the nominees after their election to the JSC,” Mr Duale said.
Former Ainabkoi MP Mr Samuel Chepkong’a chaired the committee in the last parliament.
The tenth parliament however, vetted the JSC representatives with then LSK representative Mr Ahmednassir Abdullahi dismissing the MPs’ exercise as having no meaning.
The constitution requires that individuals nominated by various entities to the commission be vetted.
Tuesday March 20 2018
The Justice and Legal Affairs committee of the National Assembly will vet Court of Appeal judge Mohamed Warsame for appointment to the Judicial Service Commission (JSC).
Justice Warsame’s vetting will be his first despite having been re-elected to the commission and comes after President Uhuru Kenyatta forwarded his name to the MPs Tuesday for consideration.
The committee chaired by Baringo North MP Mr William Cheptumo will have 14 days from yesterday, when House speaker Justin Muturi directed that the committee finds the suitability of the Judge and present its report for either adoption or rejection.
Justice Warsame was re-elected by the Court of Appeal judges to represent them in the commission two weeks ago. He got 16 votes against four for Justice Wanjiru Karanja.
His consideration comes after the committee successfully vetted other nominees to the commission, which is in charge of recruiting judges and magistrates and also takes care of their welfare including those of judiciary employees.
Former National Assembly Clerk Mr Patrick Gichohi (Public Service Commission), former Agriculture Cabinet Secretary Mr Felix Koskei and former Kenyatta University vice chancellor Prof Olive Mugenda were vetted by the committee as representatives of the public following their nomination.
The vetting of the judge will open the window for a similar process of other JSC representatives from the Law Society of Kenya (LSK), Magistrates’ Court and High Court.
The 11th parliament did not vet these nominees in what leader of majority in the National Assembly Mr Aden Duale described a serious oversight.
“The Justice and Legal Affairs committee of the 11th parliament has never explained why it never vetted the nominees after their election to the JSC,” Mr Duale said.
Former Ainabkoi MP Mr Samuel Chepkong’a chaired the committee in the last parliament.
The tenth parliament however, vetted the JSC representatives with then LSK representative Mr Ahmednassir Abdullahi dismissing the MPs’ exercise as having no meaning.
The constitution requires that individuals nominated by various entities to the commission be vetted.
I deduce: they were paying Warsame back for his service in killing the vetting board. That board could have finished off many of their careers!
Who is fooling who in this town, Maraga!
DPP Haji may have, in the role of a rascal, thrown a club into the scumbag's nest to see how the gun powder smokes!
### FORMER LSK CHAIRMAN ERIC MUTUA tried a clear-head!
Why CJ stands accused over vetting of judges
Saturday September 29 2012
In Summary
The people of Kenya approved the insulation of judicial vetting from interference by the courts. Parliament then enacted the Vetting of Judges and Magistrates Act 2011, which set up the vetting board.
The board has given determinations on all the judges of the Court of Appeal, and held four of them as unsuitable to continue serving.
The board is now interviewing judges of the High Court. High Court judges Mohamed Ibrahim and Jackton Ojwang had been elevated to the Supreme Court by the Judicial Service Commission (JSC).
But the board was required to interview them because both the Constitution and the Vetting Act stipulate that all judges who were in office at the date of the promulgation of the Constitution must undergo vetting.
By ERIC MUTUA
From June 2001 to September 2002, the Constitution of Kenya Review Commission (CKRC) collected views of Kenyans as part of the constitution review process.
CKRC’s report observed that “the Judiciary rivals politicians and the police for the most criticised sector of Kenya public society today.
For Kenyans the issues of delay, expense and corruption are the most worrying.... Many people... recommended that the present judges should be removed.”
After the constitution review was restarted, the Committee of Experts (CoE) resolved that all judges and magistrates undergo vetting in order to determine their suitability to continue serving.
To protect the process, the CoE insulated the process through section 23(2) of the Sixth Schedule of the Constitution, which provides that “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”.
The people of Kenya approved the insulation of judicial vetting from interference by the courts. Parliament then enacted the Vetting of Judges and Magistrates Act 2011, which set up the vetting board.
The board has given determinations on all the judges of the Court of Appeal, and held four of them as unsuitable to continue serving.
The board is now interviewing judges of the High Court. High Court judges Mohamed Ibrahim and Jackton Ojwang had been elevated to the Supreme Court by the Judicial Service Commission (JSC).
But the board was required to interview them because both the Constitution and the Vetting Act stipulate that all judges who were in office at the date of the promulgation of the Constitution must undergo vetting.
On July 20, 2012 the board made a determination that Justice Ibrahim was not suitable to continue serving as a judge. This finding disappointed some high-ranking people in the Judiciary as well as some lawyers.
Some of them went to work with the sole mission of saving the judge even if it meant bringing down the vetting board and the entire vetting process.
There seems to be a deliberate attempt to protect this particular judge from being vetted. The Law Society of Kenya had repeatedly taken issue with his many pending judgments and rulings (as many as 490, some undelivered for eight years). At the time of vetting in July, the judge had 264 pending judgments and rulings.
Efforts were made to help him complete his judgments, but he failed to comply with the various deadlines that had been set after his elevation to the Supreme Court. Instead he was appointed to head the Judiciary team charged with ensuring quick disposal of the anticipated electoral disputes after the General Election!
The Vetting Act stipulates that once the board makes a determination of unsuitability, a judge is deemed to be removed from office unless the decision is reversed on review. Despite the judge’s removal, the CJ in questionable circumstances allowed him to continue writing judgments and rulings.
The Chief Justice then wrote to him as follows: “Thank you very much for completing all pending rulings and judgments within the given period.”
LSK protested that this letter was an attempt to influence his application for review of the Vetting Board’s decision, and more importantly, that the decisions of the judge written after he was declared unsuitable, were unconstitutional, null and void.
On September 21, 2012, the Vetting Board reviewed its previous determination and nullified the proceedings and decision against Justice Ibrahim on account of possible bias. It also ordered that the judge be interviewed afresh to determine his suitability.
While the above matters were before the Vetting Board, the Chief Justice appointed a Bench of three judges headed by Justice Warsame to hear an urgent suit relating to the vetting of Justice Ibrahim.
Curiously, Justice Warsame was scheduled to be vetted on October 11, 2012. The Chief Justice departed from his earlier precedent where he had excluded judges subject to vetting from dealing with vetting cases before the courts.
On September 24, when the matter came before the Bench, LSK and the Vetting Board raised the issue of conflict of interest and partiality of Justice Warsame. The two parties further raised the issue of jurisdiction of the court.
Advocates in favour of stopping the vetting applied for a conservatory order. Interestingly, the advocate for JSC supported the application to stop the Vetting Board but adding that the injunction should be for a limited period.
On September 25, 2012 before dealing with the issue of disqualification of Justice Warsame and the question of jurisdiction, the bench ruled (with a dissenting ruling by Justice Kimondo) that the vetting be stopped for 14 days or until further orders.
The same judge issued an order stopping the President from degazetting another judge who had been removed by the Vetting Board. The same week two other judges who had been removed by the Board filed suits challenging their removal.
In view of what is going on, we call upon all Kenyans to protect the vetting process from a minority group of lawyers (who have enjoyed patronage and corruption in the judiciary) and judges who are hell-bent on scuttling the process.
Eric Mutua is LSK chairman
Saturday September 29 2012
In Summary
The people of Kenya approved the insulation of judicial vetting from interference by the courts. Parliament then enacted the Vetting of Judges and Magistrates Act 2011, which set up the vetting board.
The board has given determinations on all the judges of the Court of Appeal, and held four of them as unsuitable to continue serving.
The board is now interviewing judges of the High Court. High Court judges Mohamed Ibrahim and Jackton Ojwang had been elevated to the Supreme Court by the Judicial Service Commission (JSC).
But the board was required to interview them because both the Constitution and the Vetting Act stipulate that all judges who were in office at the date of the promulgation of the Constitution must undergo vetting.
By ERIC MUTUA
From June 2001 to September 2002, the Constitution of Kenya Review Commission (CKRC) collected views of Kenyans as part of the constitution review process.
CKRC’s report observed that “the Judiciary rivals politicians and the police for the most criticised sector of Kenya public society today.
For Kenyans the issues of delay, expense and corruption are the most worrying.... Many people... recommended that the present judges should be removed.”
After the constitution review was restarted, the Committee of Experts (CoE) resolved that all judges and magistrates undergo vetting in order to determine their suitability to continue serving.
To protect the process, the CoE insulated the process through section 23(2) of the Sixth Schedule of the Constitution, which provides that “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”.
The people of Kenya approved the insulation of judicial vetting from interference by the courts. Parliament then enacted the Vetting of Judges and Magistrates Act 2011, which set up the vetting board.
The board has given determinations on all the judges of the Court of Appeal, and held four of them as unsuitable to continue serving.
The board is now interviewing judges of the High Court. High Court judges Mohamed Ibrahim and Jackton Ojwang had been elevated to the Supreme Court by the Judicial Service Commission (JSC).
But the board was required to interview them because both the Constitution and the Vetting Act stipulate that all judges who were in office at the date of the promulgation of the Constitution must undergo vetting.
On July 20, 2012 the board made a determination that Justice Ibrahim was not suitable to continue serving as a judge. This finding disappointed some high-ranking people in the Judiciary as well as some lawyers.
Some of them went to work with the sole mission of saving the judge even if it meant bringing down the vetting board and the entire vetting process.
There seems to be a deliberate attempt to protect this particular judge from being vetted. The Law Society of Kenya had repeatedly taken issue with his many pending judgments and rulings (as many as 490, some undelivered for eight years). At the time of vetting in July, the judge had 264 pending judgments and rulings.
Efforts were made to help him complete his judgments, but he failed to comply with the various deadlines that had been set after his elevation to the Supreme Court. Instead he was appointed to head the Judiciary team charged with ensuring quick disposal of the anticipated electoral disputes after the General Election!
The Vetting Act stipulates that once the board makes a determination of unsuitability, a judge is deemed to be removed from office unless the decision is reversed on review. Despite the judge’s removal, the CJ in questionable circumstances allowed him to continue writing judgments and rulings.
The Chief Justice then wrote to him as follows: “Thank you very much for completing all pending rulings and judgments within the given period.”
LSK protested that this letter was an attempt to influence his application for review of the Vetting Board’s decision, and more importantly, that the decisions of the judge written after he was declared unsuitable, were unconstitutional, null and void.
On September 21, 2012, the Vetting Board reviewed its previous determination and nullified the proceedings and decision against Justice Ibrahim on account of possible bias. It also ordered that the judge be interviewed afresh to determine his suitability.
While the above matters were before the Vetting Board, the Chief Justice appointed a Bench of three judges headed by Justice Warsame to hear an urgent suit relating to the vetting of Justice Ibrahim.
Curiously, Justice Warsame was scheduled to be vetted on October 11, 2012. The Chief Justice departed from his earlier precedent where he had excluded judges subject to vetting from dealing with vetting cases before the courts.
On September 24, when the matter came before the Bench, LSK and the Vetting Board raised the issue of conflict of interest and partiality of Justice Warsame. The two parties further raised the issue of jurisdiction of the court.
Advocates in favour of stopping the vetting applied for a conservatory order. Interestingly, the advocate for JSC supported the application to stop the Vetting Board but adding that the injunction should be for a limited period.
On September 25, 2012 before dealing with the issue of disqualification of Justice Warsame and the question of jurisdiction, the bench ruled (with a dissenting ruling by Justice Kimondo) that the vetting be stopped for 14 days or until further orders.
The same judge issued an order stopping the President from degazetting another judge who had been removed by the Vetting Board. The same week two other judges who had been removed by the Board filed suits challenging their removal.
In view of what is going on, we call upon all Kenyans to protect the vetting process from a minority group of lawyers (who have enjoyed patronage and corruption in the judiciary) and judges who are hell-bent on scuttling the process.
Eric Mutua is LSK chairman