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Vetting Of Judicial Officers Challenge Thrown Out

Dennis Mogambi Mong’are v Attorney General & 3 others [2011] eKLR

Constitutional and Human Rights Division

High Court at Nairobi (Milimani Law Courts)

Mumbi Ngugi, D.S. Majanja & G.V. Odunga JJ

November 18, 2011

By Michael M. Murungi, Advocate

Nairobi, Kenya

The Constitutional and Human Rights division of the High Court has dismissed a petition challenging the vetting of Judges and Magistrates. The Court found that the Vetting of Judges and Magistrates Act, 2011 (VJM Act) was sanctioned by the new Constitution and its provisions did not violate the doctrines of separation of powers and the independence of the judiciary and that it did not threaten the constitutional rights of judges and magistrates.

While admitting that the vetting process may cause some anxiety, the Court observed that the process would help to underpin the values of accountability and integrity in the Judiciary and restore it to its respected place as the arbiter of justice in Kenya.

The petition was filed by lawyer Dennis Mong’are and joined by six interested parties: The Party of Independent Candidates of Kenya (PICK); The International Commission of Jurists – Kenyan Chapter (ICJ-K); Law Society of Kenya (LSK); Kenyans for Peace with Truth and Justice (KPTJ); African Centre for Open Governance (AfriCOG); and the Kenya Judges and Magistrates Association (KMJA).

The bench of three High Court judges described the petition as raising ‘critical questions regarding the Judiciary… and the constitutional and legislative provisions aimed at restoring public confidence in [it].

The Judges recalled that in the period leading to the new constitution, Kenya’s Judiciary had been criticized for its perceived failure to uphold the rule of law and therefore, the constitutional provisions on the Judiciary must be understood in the light of public perceptions of the Judiciary during that period.

In the Constitution of Kenya, 2010 (promulgated on August 27, 2010 after a national referendum), Article 262 provided for the coming into effect of certain ‘transitional and consequential provisions’ set out in the Sixth Schedule to the Constitution. Among these provisions was section 23 of the Schedule, which required that within one year after the coming into force of the Constitution, Parliament was to enact legislation establishing mechanisms for vetting the suitability of all judges and magistrates who were in office then to continue to serve in the Judiciary.

Later, in March 2011, the VJM Act came into force. The Act established the Judges and Magistrates Vetting Board which was to carry out the vetting exercise. Sections 17-23 of the Act set out the procedure for and the criteria to be applied in the vetting exercise.

The petition, which was stated to filed in public interest, was against the Attorney General; The Minister for Justice and Constitutional Affairs; the Judges and Magistrates Vetting Board and the Judicial Service Commission (the respondents). The petitioner argued that by permitting parliament to enact legislation for the removal of judges, the Sixth Schedule to the Constitution was unconstitutional and that both the Schedule and certain sections of the VJM Act were null and void as they violated the constitutional principles of separation of powers and the independence of the Judiciary.

He asked the High Court to declare that the following constitutional rights of judges and magistrates had been violated or threatened: the right to equality and freedom from discrimination; human dignity; freedom and security of the person; the right to a fair administrative action; and the right to a fair hearing.  He also asked for the compensation of all judges and magistrates likely to be affected by the VJM Act and for an injunction restraining the respondents from doing anything prejudicial to the judges and magistrates pending the hearing of the petition.

While PICK and the KMJA submitted that the Vetting Board was not the proper body to undertake the vetting exercise, the other interested parties opposed the petition, with at least one of them challenging the jurisdiction of the High Court to hear it.

The findings of the High Court

The following were the findings of the Court.

On jurisdiction: The High Court had jurisdiction to hear and determine the petition. The Constitution of Kenya Article 165 (3)(b) vested in that Court jurisdiction to ‘determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.’ In addition, under Article 165(3)(d), the Court had jurisdiction to hear any question respecting the interpretation of the Constitution, including the determination of any question whether any law is inconsistent with or in contravention of the Constitution.

Was section 23 of the Sixth Schedule to the Constitution in conflict with the substantive provisions of the Constitution and therefore null and void?

The Court observed that by voting in favour of the Constitution, the people of Kenya made a sovereign decision that all the provisions of the Constitution would form the basis on which they would be governed. The transitional provisions contained in the Sixth Schedule were as much a part of the Constitution and as much an expression of the sovereign will of the people as the main body of the Constitution.

Section 23 of the Constitution fell under the Sixth Schedule which contained the Transitional Provisions of the Constitution and along with the other provisions of the Constitution, the section came into force on August 27, 2010. It was not open to the Court to question the sovereign will of the people and to decide that one part of their Constitution was null and void as compared to another.  The authority conferred on the Court by the people of Kenya was to give effect to the whole Constitution.

Did the VJM Act violate the Principle of Separation of Powers and the Independence of the Judiciary?

The Court stated that the Act was enacted pursuant to Article 262 and section 23 of the Sixth Schedule to the Constitution. That section required Parliament to enact legislation for establishing mechanisms and procedures for vetting of judges and magistrates, and it was specifically stated in the section that such legislation was to operate despite the provisions of the Constitution providing for the independence of the Judiciary and the tenure and the manner of removal from office for judges -Article 160, 167 and 168. The section was part of the Constitution and as such, the vetting procedures were a constitutionally mandated derogation from the provisions regarding the independence of the judiciary. Therefore, the principle of separation of powers had to yield to the dictates of the Constitution.

Did the VJM Act violate the Bill of Rights, particularly the right to equality and the freedom from discrimination?

There was nothing in the VJM Act that violated the right to equality and freedom from discrimination. Further, in so far as the vetting process was constitutionally ordained, it could not be subjected to the test of discrimination.

As the Court further observed, all judges and magistrates appointed prior to the coming into force of the Constitution were treated equally and had the same rights under the Act. While judges appointed under the former Constitution were required to undergo vetting, judges and magistrates appointed under the new Constitution must undergo a process that complies with the dictates of Article 10 of the Constitution and ensures compliance of prospective judicial officers with the provisions of Chapter 6 of the Constitution.  In fact the relevant considerations which the Board must take into account in determining the suitability of judges and magistrates under section 18 of the Act were the same considerations applied by the Judicial Service Commission in considering the suitability of nominees for judgeship under section 13 of the First Schedule to the Judicial Service Act, 2011

Did the vetting process subject the judges and magistrates to inhuman and degrading treatment and was their right to inherent dignity violated?

In the Court’s words, the vetting process provided in the Act, which was sanctioned by the Constitution, did not ‘even remotely’ approach the definition of torture, cruel, inhuman and degrading treatment or amount to a violation of Article 25 of the Constitution. The right to have the inherent dignity of the judicial officers protected and respected under the Constitution was not violated, infringed or threatened by application of the Vetting of Judges and Magistrates Act, 2011. The Act provided that the information gathered from interviews with judges or magistrates shall be confidential. The hearings were not to be conducted in public unless the judicial officers choose to have a public hearing. Whether or not to participate in the vetting process was a matter of election by the individual judge or magistrate. Furthermore, the Act preserved the right to terminal benefits for those who elected not to go through the vetting proceedings and those who are found unsuitable for service.

Was there a threat to the right to a fair hearing and the rules of natural justice?

The Court found nothing in the Act that violated the right of judges and magistrates to a fair hearing or derogated under Article 50(1) of the Constitution.

It was satisfied that the VJM Act met the threshold of what constitutes a fair process. The requirements for notice and for the complaints to be communicated to the judge or magistrate, the opportunity to be heard, the rules of natural justice – which include the right to legal representation – were intended to safeguard the rights of the judicial officers during the vetting exercise.

The Court found that neither the Act nor Section 23 of the Sixth Schedule to the Constitution prescribed a right of appeal from the decision of the Vetting Board.   The removal of a judge from office by virtue of that section was clearly stated not to be subject to question in, or review by any court.  Since the Constitution itself clearly foreclosed on the possibility of appeal to a higher court, the Court could not imply a right of appeal.

For these reasons the Court found that the petition lacked merit and it was dismissed with no order as to costs.

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