Magistrate Vetting Board
The distinction with which the Chief Justice has gone about his business is such that the country has doubtlessly raised its legal as well as moral bar from the despicable low it all along has been. The CJ has been lucky to enjoy unlimited public goodwill in his endeavour to reform >>>
the Judiciary and make it responsive to the needs and aspiration of the nation.
As part of the reforms Parliament passed a law that lay the legal framework for vetting the judges and magistrates inherited from the old establishment. The vetting board was established and embarked on its work albeit not without some legal challenge that saw the board restrained by a court order issued by the very judges who were intended to be vetted. This was the beginning of starting to ponder certain very serious juridical questions such as would the monkeys preside over their own cause? Be that as it may the judiciary gave up on scrutinizing the constitution and process of the vetting board and submitted to its process.
Last week the Board delivered its findings on the judges of Appeal and as was expected the judges perceived to have been pro-establishment or acted in a manner that was seen as not activist friendly during their tenure at the bench got a red card. The four appellate court judges are known for having built a legal jurisprudence and a forest of case law that forms precedents upon which many a case have been determined. To rubbish as the Board did the persons of the judges undermines not only the work the individuals have put in over the years but also the decisions of the many other judges and magistrates have hitherto made relying on the decisions of the disgraced judges as authority. This has the possibility of having litigants apply to the Supreme Court for authority to reopen the cases.
Indeed one such litigant Mr S K Macharia who testified before the Board which board seemed sympathetic to the witness's case in which a high court decision awarding him damages of Ksh 100 million was overturned and substituted with an award of Ksh 56 million in favour of the other party, a bank with state influence. In expressing such sympathy obviously the bank to which Mr S K Macharia lost the case was not present to state its side of the story. To this extent, the S K Macharia evidence may is untested and should he reopen the case and all parties heard we shall know whether or not the decision of the court of appeal was unwarranted. The other challenge is that the vetting Board is not constituted as a court and for it to cast aspersions on judgments of courts as they then were may to some appear to be exceeding their authority.
However just as the Judge's decisions may with hindsight be found wanting that of the Board may equally be found wanting and at the time of writing this article, Justice Samuel Elkana Bosire had appealed the decision of the board. What will happen should the appeal go through? Will the taxpayer not have to fork out to compensate the learned judges? Did we need to get here dear compatriots? Or must we do what was done to president Moi at uhuru Park during the swearing in of the Narc regime! I hope this is not what our Kenya Defence Forces are doing in Somalia ie crashing the vanquished.
In our humble view the Board would have scored better had they come up with a finding and told the individual judges to take steps to give way rather than the ping pond of media statements even before the individual judges got the ruling. While I am not holding brief for any judge, what was the point of the judges election to be vetted in private only for their fate to be drummed up in public. What was the point of giving the public the result without giving them the process?
We are happy the CJ has foreseen the public lynching the judges would undergo and he has stated that he would not allow them to be stepped on when they are down. This is fire fighting. The damage was already done. The Board should have given its findings to the CJ and or Judicial Service Commission to take the appropriate steps in terms of best practice in Human Resource management. Really, what is the point of being a human resource crusader if the rights of judges under siege would not be protected?
At the end of the day done exactly what the radical surgery did. I might be wrong but the best way to judge the fairness of a system is on how it treats its suspects. In judging our judges were we fair? Under the New Constitution, I dare say we should have done better.
The writer is an Advocate of the High Court.