Section 23(2) of the Sixth Schedule to the Constitution ousting the jurisdiction of courts with respect to decisions of the Judges and Magistrates Vetting Board applies to magistrates
The 1st to 4th respondents, who were serving magistrates, were vetted by the 5th respondent, the Judges and Magistrates Vetting Board (the Board) and found unsuitable to continue serving as such. Their attempt to have the Board review its decision was dismissed and as a result, the Judicial Service Commission, (appellant) removed them from office. Aggrieved, various petitions were filed by individual magistrates before the High Court challenging their removal as magistrates by the Board. The 1st to 4th respondents sought to quash the determination of the Board regarding their suitability to continue serving as magistrates, alleging violation of fundamental rights and freedoms and breach of process.
The High Court held that the intention of the drafters of the Constitution of Kenya, 2010 (Constitution) was that both the serving judges and magistrates were to be vetted under a process insulated from court proceedings. Accordingly, the provisions of section 23(2) of the Sixth Schedule to the Constitution as to the decisions by the Board on the removal of a magistrate were not subject to question in any court.
The High Court also found that the Supreme Court’s decision in Judges and Magistrates Vetting Board and 2 Others v Centre for Human Rights and Democracy and 11 Others, Petition No 13A of 2013 as consolidated with Petition No 14 of 2013 and 15 of 2013  eKLR (JMVB 1) held that courts lacked jurisdiction to review the process or outcome of the vetting process by the Board. Further, in Judges and Magistrates Vetting Board v Kenya Magistrates and Judges Association & another, SC Petition No 29 of 2014;  eKLR (JMVB 2) the Supreme Court determined that courts could intervene in decisions of the Board only where the Board exceeded its constitutional and statutory mandate and more specifically, where there was proof that the Board considered matters outside the period provided under the law.
The High Court concluded that the Board acted within its powers and dismissed the petitions. Aggrieved, the 1st to 4th respondents filed appeals to the Court of Appeal, which by a majority held that the Supreme Court in JMVB (1) never addressed the question as to whether the reference to a judge under section 23(2) of the Sixth Schedule extended to include a magistrate. Consequently, the Court of Appeal held that the Supreme Court had not determined with finality the issue of the High Court’s jurisdiction over decisions by the Board in respect of magistrates as it was only judges who were exclusively mentioned. The Court of Appeal allowed the appeals and set aside the High Court’s judgment. Aggrieved, the appellant filed the instant appeal.
- Whether the ouster clause in section 23(2) of the Sixth Schedule to the Constitution applied to magistrates.
- Whether the Judges and Magistrates Vetting Board’s function of vetting of judges and magistrates was subject to the review jurisdiction of the High Court.
- Whether a contest to the decision of the Judges and Magistrates Vetting Board affecting judges involved in the vetting process was inconsistent with the terms of the Constitution.
- What was the scope in which the Judges and Magistrates Vetting Board in considering the conduct of serving judges and magistrates?
- When could public bodies and organizations which ordinarily existed to serve a country’s government and who were acting within their mandate be condemned to pay costs in a suit?
Relevant provisions of the law
Constitution of Kenya, 2010
Section 23 - Judges
- Within one year after the effective date, Parliament shall enact legislation, which shall operate despite Article 160, 167 and 168, establishing mechanisms and procedures for vetting, within a timeframe to be determined in the legislation, the suitability of all judges and magistrates who were in office on the effective date to continue to serve in accordance with the values and principles set out in Articles 10 and 159.
- 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 instant appeal met the requisite jurisdictional threshold since it involved the interpretation of section 23(2) of the Sixth Schedule to the Constitution vis-à-vis its applicability to magistrates which issue had been subject of the litigation and transcended through the superior courts to the court. In any event, section 23(2) had previously been before the court through JMVB 1 and JMVB 2 the effect of which was partly in issue in the instant appeal.
- Following the court’s decision in JMVB 1 and JMVB 2, section 23(2) of the Sixth Schedule to the Constitution ousted the jurisdiction of the courts. In the JMVB cases, the focus of the court’s decision was the mechanism contemplated under section 23 of the Sixth Schedule. That mechanism revolved around the operations and functions of the Board as per the legislation enacted under section 23(1). It did not matter whether the judges, magistrates or any other litigant, considering the expanded scope of access to justice that the Constitution brought with it, were challenging the decisions or mechanisms of the Board in relation to vetting.
- To avert the potential excesses by the Board in the vetting of magistrates and judges, it was necessary to clarify and delineate the time zone within which the Board was to consider its activities. The Board having been established as a transitional institution was expected to consider the conduct of the serving judges and magistrates as at the effective date of the promulgation of the Constitution. Any consideration beyond that date would turn it into what the court equated to the unruly dog.
- It was not entirely accurate to proclaim that magistrates were not represented in the JMVB cases. Indeed, while the JMVB cases pit at least 7 judges, serving at the time, amongst the litigants were the appellant and the Kenya Judges and Magistrates Association (KJMA) – the umbrella body dealing with the welfare of judicial officers to which magistrates comprised a large constituency. The KMJA was at all times capable of articulating the position of magistrates alongside those of judges.
- The court’s findings in the JMVB cases on the interpretation of section 23(2) of the Sixth Schedule to the Constitution was adequate. In arriving at that decision, the court considered the tenets of the interpretation of the Constitution, the history, purpose, objective and unique circumstances of Kenya. The court’s findings in the JMVB cases were neither per incuriam nor obiter dictum. The alleged absence of magistrates among the direct litigants did not overshadow the constitutional imperative which shielded the operations of the Board itself under which both the judges and magistrates fell. The mandate of the Board itself was not at the moment under challenge and the respondents willingly submitted to its jurisdiction both at the first instance and in appellate capacity when they sought a review of the Board’s decision.
- The constitutionality of section 22(4) of the Vetting of Judges and Magistrates Act No 2 of 2011 (the Act) was not framed by either of the superior courts as an issue for determination. At the heart of the instant dispute on appeal was the interpretation of section 23(2) of the Sixth Schedule to the Constitution and whether the ouster contemplated under section 23(1) of the Sixth Schedule extended to magistrates. It therefore served no further purpose to spend judicial time and resources in answering a peripheral question by way of unconstitutionality of section 22(4), the main constitutional provision of section 23(2) of the Sixth Schedule having already been addressed by the court. In any event, the 4th respondent never put a spirited attempt to make his argument around the constitutionality of that statutory provision as to try to persuade the court otherwise.
- In construing the Constitution, article 259 of the Constitution posited that interpretation ought to be in a manner that promoted its purpose, values and principles; advanced the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; permitted the development of the law; and contributed to good governance.
- The main aim of the vetting process was to ensure that any serious complaints against sitting judicial officers were properly considered. Even though the committee of experts’ (CoE) recommendation on vetting was limited to judges, it was alive to the fact that most of the public’s experiences of the justice system were at the magistracy level. However, the challenge faced was that the magistracy was large and would pose implications in the operations of subordinate courts; and by reason of judges having stronger protection, their removal being a rare occurrence. Nevertheless, before the draft Constitution was submitted to the people of Kenya in the ensuing referendum, the vetting process was extended to cover both judges and magistrates who were in office on the effective date of August 27, 2010. Resultantly, it led to the transition clause contained in section 23 of the Sixth Schedule to the Constitution as promulgated.
- The suitability of a judicial officer to continue in service under the Constitution of Kenya, 2010, constitutional dispensation, was a matter reserved by law to the Board. Hardly any cogent argument had been advanced before the court, that the Act, which implemented the ouster clause, was not indeed the legislation contemplated under section 23(1) of the Sixth Schedule to the Constitution; and as there was no other legislation such as would claim that status, there was nothing out of harmony in the common purpose of the Constitution, section 23 of its Sixth Schedule, and the relevant statute – the Act.
- A contest to the decision of the Board, insofar as such a decision affected particular judges involved in the vetting process, was in effect, a collateral challenge to the Board’s authority: and that would be inconsistent with the terms of the Constitution.
- Shielding the vetting process by the Board from the review jurisdiction of the courts represented the unique situation that Kenya found itself in as a country that was transitioning from the old order. In any event, the transition only operated in a specific time frame and historical context of Kenya. Moreover, that transition between the repealed Constitution and the Constitution of Kenya, 2010 was more people centric having accrued from a referendum. It was within that prism that the court went for the broader consideration of the vetting exercise in the transition context.
- The only logical conclusion out of the vetting exercise by the Board was to either recommend suitability of judges and magistrates to continue serving or unsuitability with the latter resulting to removal. There was no expectation that the judges and magistrates would expect different treatment before the Board undertaking a similar vetting exercise. That by no means amounted to a reading in of the specific provisional Constitution in section 23(2) of the Sixth Schedule, or equating magistrates to judges. The vetting of judges and magistrates was a constitutional requirement that was time bound under article 262 of the Constitution. Any legislative enactments made to effect the Sixth Schedule, including section 23 thereof had to be sustained.
- On the contention that the drafters of the Constitution knew the difference between magistrates and judges and used the words in the Constitution deliberately, nothing could be further from the truth. In the transition context, articles 160, 167 and 168 were inapplicable, and were thus unavailable for comparative purposes. The issue appeared to be more of grievances regarding the outcomes for the specific respondents who did not agree with the decisions of the Board. Section 23(2) of the Sixth Schedule to the Constitution, in so far as it implicated the function of the Board in the vetting of judges and magistrates, was not subject to the review jurisdiction of the High Court.
- The appellant sought declarations with regard to a process that was time bound as it was to conclude not later than December 31, 2015 and the Board was to be subsequently dissolved within thirty (30) days as per the Act. The Board was non-existent. Moreover, the declarations the appellant sought were not matters that were before the superior courts for their determination.
- The issues raised in the appeal did no more than seek clarity on a legal position that the court had previously provided. There was no purpose to be served by making declarations touching on the defunct Board. Nevertheless, it did not matter that the term of the Board may have lapsed. That was to say, lapse of time was not a factor that contributed towards the interpretation and/or application of the Constitution when the jurisdiction was properly invoked and more so, found to have merit.
- Public bodies and organizations which ordinarily existed to serve a country’s government and who were acting within their mandate needed not be condemned to pay costs where such an entity had brought or defended proceedings while acting purely in that regulatory capacity. Therefore, award of costs against such entities should only be made where such an entity had acted unreasonably or in bad faith. The appellant being an independent commission and having filed the petition in that capacity did so with no ill intent but rather to clarify the position in relation to the litigants. The court could not punish the respondents, particularly the 1st to 4th respondents for pursuing their legitimate right to access justice under the Constitution.
- In the Matter of Interim Independent Electoral Commission (Constitutional Application 2 of 2011;  eKLR) — Explained
- In the Matter of Kenya National Commission on Human Rights (Reference 1 of 2012;  eKLR) — Explained
- In the Matter of the Speaker of the Senate & another (Advisory Opinions Application 2 of 2013;  KESC 7 (KLR)) — Explained
- Joho, Hassan Ali & another v Suleiman Said Shahbal & 2 others (Petition10 of 2013;  eKLR) — Explained
- Judges and Magistrates Vetting Board v Kenya Magistrates and Judges Association & another (Petition 29 of 2014;  KESC 4 (KLR)) — Explained
- Judges & Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others (Petition 13 A, 14 &15; of 2014;  KESC 9 (KLR)) — Explained
- Kenya Revenue Authority v Export Trading Company Limited (Petition 20 of 2020;  KESC 31 (KLR)) — Explained
- Mong’are, Dennis Mogambi v Attorney General & 3 others (Petition 146 of 2011;  KEHC 1139 (KLR)) — Explained
- Nduttu, Lawrence & 6000 others v Kenya Breweries Ltd & another (Petition 3 of 2012;  eKLR) — Explained
- Outa, Fredrick Otieno v Jared Odoyo Okello & 3 others (Petition 6 of 2017;  KESC 25 (KLR)) — Explained
- Rai, Jasbir Singh & 3 others v Tarlochan Singh Rai Estate of & 4 others (Petition 4 of 2012;  eKLR) — Explained
- Constitution of Kenya (2010) — Article 1, 2, 10, 159 (2) (e), 160, 161, 163 (4) (a) (7), 165, 167, 168, 172, 259, 260, 262; Chapter 10; Schedule Sixth; Section 23 (1) (2) — Interpreted
- Supreme Court Act, 2011 (Act No 7 of 2011) — Section 15 (2), 21 (A) — Interpreted
- Supreme Court Rules, 2020 (Act No 7 of 2011 Sub Leg) — Rule 39 (1) — Interpreted
- Vetting of Judges and Magistrates Act, 2011 (Act No 2 of 2011) — Section 14, 18, 22 (4) — Interpreted
- Neo, JL., (Ed) (2017), Constitutional Interpretation in Singapore; Theory and Practice (London; Routledge 1st Edn p 1)
Mr Kanjama SC, and Ms Owano (Muma & Kanjama Advocates) for Appellant
Mr Ongoya (Ongoya & Wambola Advocates) for 1st to 3rd respondents
Mr Bernard James Ndeda (C/O Billy Amendi & Co Advocates) for 4th respondent
Mr Marwa for 5th and 6th respondents