International Justice Monitor

A project of the Open Society Justice Initiative

Four Kenyan appeals court judges declared unfit for office

A board vetting Kenya judges sent a clear message when it declared four of the country’s senior most judges not fit to serve on the bench: bending the law in favor of the powerful or wealthy will no longer be tolerated.

The Judges and Magistrates Vetting Board determined on Wednesday that the four judges, who between them had more than 120 years’ experience on the bench, should not continue in office because a review of their judgments showed that they were partial to the powerful and rich.

The Board was not concerned with the factual and legal points of a single judgment but “whether the decision had been so extraordinary in itself, and so embedded in a larger pattern of legally-strained decisions, as to point to the existence of a judicial mindset that was so manifestly lacking in fairness and impartiality as to undermine public confidence in the judiciary,” said Sharad Rao, a retired Kenyan prosecutor who is serving as the Board’s chairman.

The nine-member board, which is made up of Kenyan and foreign jurists and other experts, is also mandated to look into allegations of bribe-taking. It said it did not receive any credible evidence to show any of the judges they vetted was on the take.

“Should it happen, then, that an individual judge who is widely accepted as having been “on the take’’ ends up being declared suitable to remain in office, that would be the result of the requirement to base the Board’s determination on evidence, and not on a general perception,” said Rao, reading a detailed statement on behalf of the Board.

The Court of Appeal judges, who learned yesterday that they no longer have jobs, have seven days to ask the board to review its decision. Whether they seek a review or accept what has already been declared, the constitution decrees that the Board’s decision is final and cannot be challenged in court.

The Board was vetting only eight out of the 16 serving Court of Appeal judges because these are the ones who were in office when Kenya’s new constitution came into effect on August 27, 2010. It also vetted a ninth person who was a Court of Appeal judge at the time but now sits at the Supreme Court. The other members of the Court of Appeal were High Court judges on August 27, 2010 and will undergo vetting in the next phase.

The Court of Appeal judges who have been declared unsuitable to continue in office are: Riaga Omollo, Samuel Bosire, Emmanuel Okelo O’Kubasu, and Joseph Nyamu. The Board was unanimous in determining that Bosire and Nyamu should no longer be judges. It was split seven to two in favor of dismissing Omollo. The Board was also split eight to one in favor of O’Kubasu no longer serving as a judge.

The Board cleared the other five Court of Appeal judges. It reached its decisions after, among other things, assessing the decisions of the individual judges, weighing complaints against them, and interviewing the judges individually. The Court of Appeal judges who have been cleared include Philip Tunoi, who is now a Supreme Court judge and Philip Waki, who chaired the Commission of Inquiry into the Post-Election Violence. That commission recommended Kenya set up a credible and independence tribunal to try the suspected masterminds and other perpetrators of the violence that consumed Kenya in early 2008. The commission also recommended that if Kenya is unable to form such a tribunal then the suspected masterminds be tried at the International Criminal Court (ICC).

Until Wednesday, Omollo was the longest serving judge in Kenya, followed by Bosire and O’Kubasu. The Board noted that Omollo had helped improve civil litigation in Kenya and was generally impartial in his judgments so long as the cases did not involve the wealthy or politically powerful. It observed that in the case of O’Kubasu, he had shown courage in his early career, issuing decisions against the powers that be during the time when Kenya was a one-party state. However, O’Kubasu changed later in his career. Before Wednesday’s decision, O’Kubasu was the presiding judge in the case in which the government is appealing against a court order to enforce an arrest warrant against Sudanese President Omar al-Bashir on charges of genocide and crimes against humanity at the ICC. The Board also noted Nyamu’s judicial career followed a trajectory similar to O’Kubasu’s. In the first half of his time on the bench Nyamu was fair and impartial, the Board noted, only to change later find ways to rule in favor of those in power or the politically-connected.

Wednesday’s announcement was the first the Board made in its three-stage process of assessing the suitability for office of all judges and magistrates appointed before August 27, 2010. This is the day Kenya’s new constitution came into effect, abolishing the wide discretionary powers the president had previously enjoyed in making judicial appointments. That was also the day the Treasury’s power over the judiciary’s budget was eliminated.

The work of the Board was one of the justifications a section of the government gave in January last year to lobby for the African Union’s support for a request at the United Nations Security Council to defer for a year the Kenya cases before the ICC. The reasoning was that the constitution decreed a one-year process of sifting the good from the bad in the judiciary and Kenya needed the space to see through that process so as to be able to handle cases stemming from the December 2007 to February 2008 violence that nearly tore up the country. Currently, four prominent Kenyans are awaiting trial before the ICC in relation to that violence during which more than 1,000 people were killed.

The Judges and Magistrates Vetting Board did not formally begin its work until January this year because the legislation to establish it took long to go through the National Assembly and there have been constitutional challenges to its formation and work. The first stage of its work was to examine the judgments, character, and any complaints against nine judges of the Court of Appeal. The Court of Appeal was the highest court before the new constitution came into effect in August 2010. The constitution created a Supreme Court and its judges have been appointed through a two-phase vetting process.

The next stage of the board’s work is to vet 44 High Court judges. This began Thursday. Once it makes its determination on those judges, it will then move to examining 328 magistrates. Aside from Rao, the board has five other Kenyan members and three foreign members. The foreigners are Ghana’s Chief Justice Georgina Theodora Wood; a former South African Constitutional Court judge, Albie Sachs; and veteran Zambian jurist Frederick Mwela Chomba, who has previously served as Supreme Court judge and Attorney General in Zambia as well as Chief Justice of Gambia.

The work of the Judges and Magistrates Vetting Board is the third phase of the transformation of Kenya’s judiciary. The first phase was the enactment of the new constitution that included provisions opening up judicial appointments to a competitive and transparent hiring process and strengthening the judiciary’s administrative and financial independence. The second phase was the appointment of a new Chief Justice, Deputy Chief Justice, and Supreme Court judges through a two-phase vetting process.

The clamour for a clean-up of Kenya’s judiciary predates the Kenya cases at the ICC. The need for judicial transformation was a key issue during the agitation for re-writing the country’s constitution, which had been sporadic between the 1960s and 1980s. It really picked up at the end of the 1980s.

After Kenya gained independence from Britain in 1963, the former colony and former colonial master entered into an agreement to have a small number of British judges appointed to the Kenyan bench as the nascent country built up its own legal profession. In addition to the constitutional provision of security of tenure, the British judges received a pay package equivalent to what they would have earned if they were serving in the United Kingdom. The costs were split between the governments of Kenya and Britain. Kenya paid the British judges what their Kenyan counterparts were paid and Britain then topped that up. This, however, did not embolden the British judges, some of whom served as Chief Justices of Kenya, and many were known to rule in favour of the powers that be.

Ironically, it is under Kenyan Chief Justices that the cleaning of the judiciary started. Their measures, however, were piecemeal and they generally failed to act fully on reports they commissioned. The first effort at a systematic clean-up of the judiciary was in 2003 following the landslide election of Mwai Kibaki as president on a platform to push through wide-ranging reforms. The 2003 clean-up saw half the judges resign or face a tribunal and a third of the magistrates sent home. This was not followed-up nor did it still the continuing agitation for the judiciary to be radically transformed.

The latest judicial clean-up is informed by the experience of 2003. Some judges and lawyers criticized the 2003 purge for not giving the affected judges and magistrates a chance to present their side of the story before the allegations against them were made public.

 

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