Nairobi; Kenya: The Supreme Court's judgment declaring the decision of the Judges and Magistrates Vetting Board final and that the High Court and Court of Appeal had no jurisdiction on the process of vetting of Judges is one of the most significant steps the court has taken to ensure the Judiciary accords with the spirit of the new Constitution.
For those who may not remember, in 2003 when current Defence Cabinet Secretary Raychelle Omamo was Chair of the Law Society of Kenya, the entire law society membership, for the first time in the life of the society, went on a boycott of the courts and carried out nationwide demonstrations against the Judiciary for a day. The reason for the boycott was that the then discredited Judiciary had filed a case in the High Court to block any provisions prejudicial to the Judiciary from being inserted in the draft constitution. It was the classic case of a monkey being the judge in the affairs of the forest. The provisions that the Judges were unhappy with included a requirement that upon the passage of the new Constitution, all judges would be vetted afresh to determine their suitability to continue holding office. This provision was informed by two realities. In Kenya's dark history, the courts had played a major role in emasculating Kenyans' clamour for democratisation and had allowed the Executive to liberally clamp down on citizen's human rights. Many Kenyans remembered how in the 90s the courts had turned a blind eye to the torture and degrading of Kenyans human rights and pro-democracy activists sometimes holding court sessions in the night where accused persons were brought to court in stretchers.
There were also credible allegations of widespread corruption in the courts. For this reason, everyone felt that Kenyan's faith in the judicial process would only be restored by a fresh Judiciary. Kenyans also knew that though the Executive and Parliament were equally culpable in the abuse of Kenyans' rights, these two institutions would be renewed through an electoral process, an option that was not available in the case of the Judiciary. It was in view of these realities that the new Constitution contained several clauses that were intended to ensure that the Judiciary was renewed and that the process was not compromised through the courts.
On the one hand the Constitution required the Chief Justice to vacate office upon passage of the Constitution; he was to be the symbolic sacrificial lamb to atone the sins of the Judiciary. For the remainder of the judges, the Constitution mandated the setting up of a mechanism for vetting of all judicial officers through the Vetting Board. To insulate the process, Section 23 of the 6th Schedule of the Constitution provided clearly that "the removal or process leading to the removal of a Judge from office by virtue of the.. vetting process... would not be subject to question in or review by any court". The Constitution appeared naively unaware that this country is full of smart lawyers who would find a way to circumvent these provisions. That unfortunately is what transpired. Numerous judicial officers upon being removed went to court and obtained orders vacating the decisions of the Vetting Board in clear contravention of the provisions of the Constitution. Of course because our constitutional architecture affirms all decisions of the courts even where they are manifestly wrong, the Judicial Service Commission has had to abide with the Court Orders and continue paying these removed officers their emoluments.
The Supreme Court's decision to confirm what the people of Kenya had intimated; that this process would not be open to review by the courts, is an important closure to this unfortunate chapter in the story of the Kenyan Judiciary. It however has important lessons for institutions which are already violating people's rights whilst exercising responsibilities granted to them by the new Constitution. The public may appear impotent in the face of abuse of these responsibilities by these institutions. But this "impotence" is not forever; there will come a time to account. That time came for the Judiciary in 2010. No amount of huffing and puffing will protect it from the consequences of its dark season.
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