International Justice Monitor

A project of the Open Society Justice Initiative

Kenyan Supreme Court judge and Court of Appeal judge both declared unfit for office

One of Kenya’s Supreme Court judges has been declared unfit to continue serving as a judicial officer because of the hundreds of cases he still had pending from his time as a High Court judge.

Mohamed Khadhar Ibrahim becomes the first Supreme Court judge to be removed from office since Kenya’s highest court was formed after the country adopted a new constitution in August 2010.

The Judges and Magistrates Vetting Board, which is mandated by the constitution to review the work of the country’s judges and magistrates, announced its decision Friday, ending the judicial career of one of Kenya’s most courageous lawyers.

It dedicated a significant portion of its statement to analyzing the inordinate delays in court cases in Kenya, laying the ground for its decisions against Ibrahim and one other judge. The board recognized that understaffing, inefficiency, corruption, and underfunding contributed to the backlog of cases in the judiciary, but many judges had been able to overcome these difficult circumstances to manage well their caseload.

The board declared Ibrahim unfit to continue working as a judge because he had a backlog of 264 judgements, rulings on applications and other matters, some that have been pending for eight years. The board found that Ibrahim had twice promised to clear the backlog accumulated from his postings as High Court judge in several towns in Kenya.

Each time he failed to do so. He had made one such promise to the bar association, the Law Society of Kenya, and another to the Judicial Service Commission, the judiciary’s supervisory body that the Chief Justice chairs.

This year, the board learned, Ibrahim had asked Chief Justice Willy Mutunga in May to allow him three months to clear the backlog. Mutunga granted Ibrahim’s request, on condition that he would be available for any Supreme Court cases he may be needed for.

“This is not a borderline case. The delays were unacceptable, carried like a hump on a camel’s back from one posting to the next. Literally hundreds of litigants from every walk of life felt robbed of their right to have their cases finally determined,” said Sharad Rao, the board’s chairman, reading its decision to the media.

“The damage done to public confidence in the judiciary was indubitable, extensive and irremediable. Indeed, it is hard to think of a more egregious example of judgments being delayed and justice denied,” Rao said.

The board said it is aware its decision would lead to further delays in the already prolonged cases and it considered suspending it to allow Ibrahim to clear the backlog.

“However, given past undertakings by the judge that were not met, coupled with the qualified nature of the leave given by the Chief Justice, the Board was doubtful that the judge could complete the task as promised,” Rao said. “Finally, there is a need for the composition of the Supreme Court to be stabilised as swiftly as possible.”

The board, however, was clear that its decision “was not based on even a hint of corruption, or on considerations of lack of impartiality.”

Before becoming a judge in 2003, Ibrahim was a lawyer in private practice. In the late 1980s he took on the government of then President Daniel arap Moi for its arbitrary arrests of Kenyan citizens of Somali ancestry on the pretext that they were actually Somalis who had fled their country, which had just started disintegrating. He was detained without trial in July 1990 during a crackdown on pro-democracy activists and was released after a month.

Ibrahim was being vetted because he was a High Court judge before August 27, 2010 when Kenya’s new constitution took effect. The Judges and Magistrates Vetting Board is reviewing the work of all judicial officers who were serving on the bench before the new constitution took effect. Its decisions are final and cannot be challenged in court. However, the judges it recommends should no longer serve on the bench can apply for a review of its decisions.

The Judges and Magistrates Vetting Board already made its decision on the judges who were serving on the Court of Appeal at the time, declaring that four of them were unfit to continue serving on the bench. The four applied for the board to review its decisions. On Friday, the board said it had considered their applications and found no reason to change its April 25 decisions to declare them unfit to serve on the bench.

The board also announced on Friday its decisions on the review of the work of four other judges. It cleared three of them, including Supreme Court judge Jackton Boma Ojwang. The board noted that Ojwang had a backlog of 145 cases when he was appointed to the Supreme Court in June 2011, partly because he had been ill for months.

“The Board noted that when restored to health he set about in a disciplined and rigorous way to clear the backlog,” Rao said. “This meant that by the time of the interview with the Panel he was able to report that he no longer owed any outstanding judgments and rulings.”

The one judge who was not cleared is Roselyn Naliaka Nambuye, who was until Friday a Court of Appeal judge.

“By all accounts, she has shown herself to be compassionate, hard-working, and fair-minded judge,” Rao said. “However, the judge’s inability to say no, or to manage her caseload and her courtroom effectively, have contributed to delays that serve to undermine the delivery of justice to the litigants appearing before her, and to undermine public faith in the judiciary generally.”

Friday’s announcement was the second the board made in its three-stage process of assessing the suitability for office of all judges and magistrates appointed before the new constitution came into effect. The new constitution abolished the wide discretionary powers the president had previously enjoyed in making judicial appointments. It also eliminated the Treasury’s power over the judiciary’s budget.

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.

After Friday’s decisions, it will continue vetting the remaining 39 judges who were serving in the High Court before August 2010. 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.

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