Apr 26th, 2012 by Mars Group Kenya
KENYA JUDGES AND MAGISTRATES VETTING BOARD
THE JUDGES OF THE COURT OF APPEAL
1) On the 4th of August, 2010, the people of Kenya voted at a national referendum to approve a new Constitution. The referendum was the culmination of a two-decade search for a new constitutional dispensation in Kenya, a dispensation that is anchored firmly in the sovereignty of the people of Kenya. The new Constitution came into force upon its promulgation on the 27th of August, 2010.
2) In the period during which the agitation for a new constitution took place, the Kenyan judiciary had come under sustained criticism for its perceived failure to uphold the rule of law. The reports of various bodies, official and non official, among them committees comprising judicial officers, highlighted the public perception of the judiciary as a corrupt institution. For instance, the Constitution of Kenya Review Commission in its report titled, “The People’s Choice: The Report of the Constitution of Kenya Review Commission” noted among the concerns with regard to the judiciary that, “The judiciary rivals politicians and the police for the most criticized sector of Kenyan public society today. For ordinary Kenyans the issues of delay, expense and corruption are the most worrying. For lawyers, there is concern about competence and lack of independence.”
3) In addressing corruption as an obstacle to the rule of law, the Government set up the ‘Integrity and Anti-corruption Committee of the Judiciary in Kenya, 2003’ to implement policy known as “radical surgery”. The committee cited credible evidence of corruption on the part of five out of nine Court of Appeal Judges (56%), 18 out of 36 High Court Judges (50 %) and 82 out of 254 magistrates (32 %) in its Report. Prior to informing the accused of the allegations against them, however, a ‘List of shame’ was published in the media, naming the judges and magistrates implicated in the report. The Acting Chief Justice publicly advised those named on the list to resign quietly within two weeks or be suspended without pay or privileges and face tribunals. Justice Waki, a judge of the Court of Appeal, and one other judge, challenged the allegations against them, and after securing a public hearing, achieved their reinstatement in late 2004. Of the 82 magistrates implicated, 70 were ‘retired’ by the Judicial Service Commission in the public interest. The process of publicly naming individual judges and magistrates as corrupt without giving them prior notice of charges against them was widely criticized, as was the pressure placed on them to resign from office. These actions were seen to compromise judicial independence, including security of tenure, and undermine the right to due process.
4) Yet, radical though the process was, it failed to restore public confidence in the judiciary. On the eve of adoption of the Constitution in 2010, a judiciary-led taskforce on judicial reform noted that “….corruption remains one of the greatest challenges to the judiciary. The Task Force received representations that whereas there have been measures to address corruption within the judiciary, the results have been suboptimal as borne out by the number of judicial officers and staff who have been disciplined by the JSC on corruption claims or otherwise faced corruption charges in the courts of law. As a result, corruption remains a major contribution to the Judiciary’s institutional decline and low public confidence in the judicial process.”
5) Indeed, clamour for a fair, impartial and independent judicial system in the country had become more rather than less pronounced. The lack of confidence in the judiciary had in fact had profound consequences for the life of the nation. More than a thousand people had been killed and hundreds of thousands displaced, when the controversial outcome of the presidential election in 2007 had not been contested in court, but instead been followed by war in the streets.
6) These events had tragically borne out the truth of the statement in the Preamble to the Bangalore Principles of Judicial Conduct, that public confidence in the judicial system and in the moral authority and integrity of the judiciary is of the utmost importance in a modern democratic society. In Kenya this public confidence had virtually collapsed. Judicial reform was now identified as one of the areas of focus towards restoring the credibility, integrity and independence of public institutions generally. Transformation of the judiciary consequently featured prominently in the normative value system, design and text of the new Constitution.
7) Thus, Chapter 10 of the Constitution, entitled ‘Judiciary’, contains a large number of provisions intended to create a judiciary that, by correcting and transcending the deficiencies of the past, would come to enjoy the confidence of the public and become a central element in the new democratic dispensation. The Constitution declares that judicial authority derives from the people, re-affirming the sovereignty of the Kenyan people. The courts and the tribunals are required to exercise their judicial authority in a manner that ensures that justice is done to all irrespective of status, that justice is not delayed and that justice is administered without undue regard to procedural technicalities. The independence of the judiciary is guaranteed by the requirement that the judiciary shall not be subject to the control or direction of any person or authority in the exercise of the judicial authority. Appointments to the judiciary are done by an independent and broadly-based Judicial Service Commission, unlike in the previous constitutional dispensation where the President had a personal discretion to appoint judicial officers. The Constitution also established an apex Supreme Court to provide fresh leadership to a judiciary that would be guided by comprehensively enunciated values and principles designed to ensure justice, fairness, inclusivity and social responsibility.
8) This then, was the historical and constitutional context in which, as a transitional measure to help restore public confidence in the judiciary, the Kenya Judges and Magistrates Vetting Board was established.
1) Article 23 of the Sixth Schedule to the Constitution, which deals with transitional matters, provides that;
‘(1) Within one year after the effective date Parliament shall enact legislation which shall operate despite Articles 160, 167 and 168, establishing mechanisms and procedures for vetting within a timeline to be determined by 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 Article 10 and 159.’
(2) 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 effective date is the day on which the new Constitution came into force. The vetting process accordingly became applicable to all judges and magistrates who were in office on 27th August 2010. Judicial officers appointed after that date are accordingly not subjected to vetting.
2) Parliament duly enacted the Vetting of Judges and Magistrates Act, 2011 (the Act) which came into force on 22nd March, 2011. The Act establishes an independent board to be known as the Judges and Magistrates Vetting Board (“the Board”). The functions of the Board are, ‘To vet judges and magistrates in accordance with the provisions of the Constitution and this Act’. The term ‘vetting’ is defined as ‘the process by which the suitability of a serving judge or magistrate to continue serving in the judiciary is determined in accordance with this Act’.
II. GUIDING VALUES AND CONSIDERATIONS
3) The Constitution and the Act establish a comprehensive and objective system of factors that must guide the vetting process. Thus, the Constitution declares that the Board must vet the suitability of the judges in accordance with the values and principles set out in Articles 10 and 159. Article 10 includes amongst its binding national values and principles: the rule of law, democracy and participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized, good governance, integrity, transparency and accountability. Article 159 goes on to enunciate three guiding principles of justice: i) it should be done to all irrespective of status, ii) that it should not be delayed and iii) that it should be administered without undue regard to procedural technicalities.
4) The Act provides both general and specific guidance. In general terms it emphasizes that the Board, “shall at all times be guided by the principles and standards of judicial independence, natural justice and international best practices. More specifically, it requires that when determining the suitability of a judge, the Board must consider the following: i)constitutional criteria for appointment; ii) past work record, including prior judicial pronouncements; iii) criminal cases or prosecutions against the judge or magistrate concerned; and iv) complaints or other relevant information received from any person or body, including the Law Society of Kenya, the Kenya Anti-Corruption Commission, the Attorney General, the Judicial service Commission and other identified bodies.
5) In considering these matters, the Board is expressly required to take account of professional competence, written and oral communication skills, integrity, fairness, temperament, good judgment, legal and life experience and demonstrable commitment to public and community service.
6) Each of the qualities consists of detailed elements. Because of their special relevance in the case of judges of the Court of Appeal, the details concerning integrity and fairness merit being set out in full. Thus, integrity is said to include;
i) a demonstrable consistent history of honesty and high moral character in professional and personal life; ii)respect for professional duties, arising under the codes of professional and judicial conduct; and iii) ability to understand the need to maintain propriety and the appearance of propriety;
7) Similarly, fairness is said to include;
(i) A demonstrable ability to be impartial to all persons and commitment to equal justice under the law; and (ii)Open-mindedness and capacity to decide issues according to the law, even when the law conflicts with personal views.
The Act provides that all information obtained by the Board during the personal interviews, and records of the judge being vetted shall be confidential. It also states that the hearing by the Board shall not be conducted in public, unless the concerned judge or magistrate requests a public hearing.
9) The Board shall upon determining the unsuitability of a judge or magistrate to continue serving in the judiciary, within 30 days of the determination inform the concerned judge or magistrate of the determination in writing specifying the reasons for the determination. Once informed of the decision of unsuitability, the judge or magistrate shall be deemed to have been removed from service. The decision to remove a judge or magistrate shall be made public.
III. PROCESS FOLLOWED BY THE BOARD
10) The Board put various Notices to the Public in the Daily Nation and Standard newspapers, requesting the public to submit complaints in the prescribed form. The Board also wrote to the Chief Registrar requesting files (both open and confidential), as well as information and complaints which may have been lodged with the judiciary with respect to the judges who are to be vetted. Further, the Board wrote to the Chief Registrar asking her to facilitate the distribution of the vetting questionnaires to all the judges. The judges of the Court of Appeal were required to complete and submit the questionnaires on or before 10th January 2012.
11) Information and/or complaints touching the judge were received by the Board. These included complaints from members of the public. They also included complaints or information furnished by the Law Society of Kenya and the Judicial Service Commission. Despite written requests from the Board, no complaints or information were received from the Advocates Disciplinary Committee, Advocates Complaints Commission, Attorney General, Public Complaints Standing Committee, Kenya National Human Rights and Equality Commission, National Intelligence Service and the police.
12) Every complaint received was looked at and considered by the Board. Certain complaints were identified by the Board as warranting inquiry and were summarized for presentation to the judge.
13) Notice to file a response, plus an addendum containing additional matters that the Board intended to discuss with the judge, was then personally served upon the judge, together with a Notice requiring the judge to appear before the Board.
14) In compliance with the rules of natural justice the Board gave the judge:
a)an opportunity to respond; b) an opportunity to be heard in person; c)the right to be represented by Counsel(s) of his or her choice and; d) opportunity to question the complainants and witnesses.
15) All judges duly filed their questionnaires and appeared before the Board. The judges were given an opportunity to determine whether they preferred a public or private hearing. All judges opted for a private hearing. They also requested the right to question the complainants.
IV COMPOSITION OF THE PANELS
16) Although the Chairperson of the Board has discretion to constitute three panels of the Board to work concurrently, the Board decided that in the first phase of interviews, namely, those with members of the Court of Appeal, it should sit as a full Board. This was because the vetting process was unique and the members had vastly different life and professional experiences; there was the need to develop a consistent approach to dealing with any legal or procedural problems that might arise; and it was important to establish a uniform manner of weighing and applying the criteria that should guide the members when making their evaluations of suitability. Sitting as a full Board at this early stage would also serve to reduce the danger of the outcome in any individual case being perceived as having been unduly affected by the particular composition of the panel concerned. Accordingly, all members of the Board save those who were unavailable at the interview sat in the judge’s interview.
V COMMENCEMENT OF THE VETTING PROCESS
17) The vetting process commenced on 23rd February, 2012 with the most senior judge of the Court – Justice Omollo followed by other judges. In each case the judge was represented by Counsel and in some cases by more than one.
18) At the commencement of the interview the Chairperson sought the judge’s views on whether the judge objected to the jurisdiction of the Board or the presence of any member of the Board. None of the judge raised any objection in either respect.
19) The Board commenced the interviews by requiring the judges to respond to specific complaints as provided in the Notice to file response. Thereafter, the Board proceeded with questions that ensured that all the relevant considerations under the constitution and the Act were covered.
20) In conducting the interview the Board relied inter alia on the following documentation:
i)The questionnaire; ii)The wealth declaration; iii)Complaints received received; iv)Response to the complaints; v)Transcripts of interviews conducted with the judge by the Judicial Service Commission except in the case of Justice Onyango Otieno, for the positions of Chief Justice and Judge of the Supreme Court; vi)Any material available on the past work record of the judge including Rulings made and Judgments delivered; vii)The Ndungu and Ringera reports
21) The interviews were recorded by Hansard.
22) As mentioned above, the Board was guided in its decision-making by the principles and criteria laid down in the Constitution and the Act. During the interviews, the Board accordingly discussed a wide range of matters with the judges, including, the rule of law, human dignity, equity, social justice, equality, human rights, non-discrimination, protection of the marginalized, good governance, integrity, fairness, transparency, and accountability.
23) At the end of the interview, the judge and counsel were given an opportunity to make final remarks. They were also given an express opportunity to state whether the judge had any objection to the procedure that had been followed. No objection was raised.
24) From the information provided in the questionnaire by the judge, coupled with the rulings and judgments of the judge as well as the interview conducted with the judge, the Board was able to assess the judge’s intellectual capacity, legal judgment, diligence, knowledge of the law, organizational and administrative skills and ability to work well with others.
25) The interview also enabled the Board to get some familiarity with the temperament of the judge, and to have a discussion with the judge on his legal and life experiences as well as to evaluate his communication skills. Finally, the Board was able to deal with issues of integrity, fairness and good judgment.
VI. RECORD OF COMPLAINTS, OTHER INFORMATION AND TRANSCRIPT OF THE INTERVIEW
26) The complaints and other forms of information that were considered by the Board, the judge’s response and the Hansard transcript of the interview with the judge, constitute the record of proceedings.
VII. NEED FOR CAREFUL ANALYSIS
27) The Board was aware that the vetting process is sui generis – of its own kind. It cannot be equated with, or closely modeled on, impeachment or a disciplinary hearing, or a criminal or civil trial, or a job interview or a security clearance. Its modalities have to be structured around the objectives, processes and values identified by the Constitution and the Act. The Board accordingly had to function carefully and appropriately within these specific constitutional and statutory parameters.
28) The Board’s role has not been to carry out a purge but to conduct a vetting process. Whereas a purge would have involved automatic exclusion based purely on actual or presumed membership of an identified group, the vetting procedure, is founded on the rule of law involving the assessment of an individual’s responsibility in the light of an overall evaluation of the extent to which the conduct at issue is compatible with the criteria established by the Constitution and the Act. Thus the Board’s objective was not to punish, discipline, exonerate or reward the judge, but to help restore public confidence in the judiciary. If the processes followed were themselves arbitrary and its decisions were not solidly based on material before it, public confidence would not be restored. Equally, if judges who had manifestly failed to meet the required criteria were passed as suitable, public confidence would not be restored.
29) Determinations of suitability cannot be made in a pre-ordained or mechanical manner. Nor can there be a one-size-fits-all formula applicable in all cases. Each determination must be fairly and appropriately arrived at, and has to be based on a holistic evaluation of suitability founded on the specific material before the Board, coupled with the answers given and the impression made by the judge at the interview.
30) The primary function of the Board is to vet and not to investigate. The amplitude and success of its work has accordingly been heavily dependent on the information and complaints presented to it, whether by members of the public or the Law Society of Kenya or other public bodies. Unfortunately, a large number of bodies identified in the Act as potential sources have not responded to requests from the Board for information.
31) The Board was mindful that its role was not to sit as a court of appeal in relation to the factual or legal correctness of rulings given or judgments delivered by the judge. The Board was also aware that many litigants who lose a case are convinced that the court could only have gone against them because of bias or corruption. At the same time the Board found it both appropriate and necessary to examine the past work record of the judge, including prior judicial pronouncements that were said to manifest a lack of fairness and impartiality. This was particularly important in relation to questions of whether the judge had compromised the independence of the judiciary by showing a judicially-unacceptable proclivity to immunize the powerful and the wealthy from independent judicial scrutiny. In this regard, the point of departure of the Board was that judicial independence must be jealously guarded; each judge has an individual judicial conscience; in any jurisdiction, some judges tend to be literalist in their approach to interpreting laws, others more purposive; some develop a reputation for being executive-minded, others for favouring the individual; some as being tough on crime, others as soft. Indeed, judicial philosophy and approach can vary from judge to judge, decision to decision and country to country. These were not issues of direct concern to the Board. Its queries, rather, related not so much to whether a particular case had been correctly decided on the facts or the law, but to 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. Associated with this was the issue of whether the decision(s) involved an undue degree of bending of the law in order to achieve a pre-determined result favouring powerful personalities.
32) Because all the judges interviewed were members of the Court of Appeal, certain special factors were present. All had long years of experience in the judiciary, during which they had acquired general technical competence; all had survived the process of radical surgery; all except one, had been extensively and recently interviewed by the judicial Service Commission when they had applied for positions as Chief Justice or as members of the newly-created Supreme Court; and, finally, all had adjudicated on controversial pieces of litigation over a long period of time.
33) It should be noted that as far as Court of Appeal judges are concerned, in spite of widespread public perceptions of continuing corruption in the judiciary, relatively few complaints of bribe-taking were received in regard to the judges of the Court of Appeal. In the nature of things, people who offer bribes are unlikely to come forward, knowing that they may both face sanctions for what they have done and see judgments granted in their favour set aside. This does not, however, allow the Board to act on the basis of public perceptions of bribe-taking in general. It must be guided by the evidence in each particular case. 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. If those who know of corrupt behavior do not themselves come forward, they cannot complain when persons they are sure are corrupt, pass through the vetting net. Conversely, it would be grossly unfair to tarnish those judges who have conducted themselves honorably for years and decades, because some of their fellow judges – we do not know exactly who – might have taken bribes. Finally, it should be noted that in the Court of Appeal, judges sit in panels of three or more, which reduces the scope for an individual judge to influence an outcome corruptly.
34) The Board was aware of the fact that, even though early retirement rights would not be affected, removal of the judge from the Bench would have a profound impact on both the judge’s professional career and his general reputation. Given the pressure of large numbers of interviews having to be conducted in a relatively short period of time, it was particularly important not to lose sight of the need to uphold the principles of natural justice. In addition, the Board was conscious of the fact that the Constitution and the Act required it, and it alone, to have both the first and the final word on the suitability of the judge. All of these factors underlined the importance of the Board weighing the evidence before it with special care, and of ensuring that its evaluations were solidly based on the material before it – the need to be resolute could not override the necessity to be principled and fair. Indeed, restoring public confidence in the judiciary required the Board to function in a manner that was simultaneously firm, fair and expeditious. It had to conduct itself without fear, favour or prejudice. In a word, the vetting process itself had to be just.
35) Guided by the above approach, bearing in mind the need to restore public confidence in the judiciary, using the processes outlined above, applying the criteria laid down in the Constitution and the Act, taking account of the requirements of natural justice and the need to look at the suitability or unsuitability of the judge as an individual, the Board considered all the material before it, and made its findings and determinations.
VIII. FINDINGS AND DECISION
The Board’s Determinations in regard to the 9 judges of the Court of Appeal subject to vetting are as follows
I: Honourable Justice Riaga Omollo.
1) Hon. Justice Omollo was interviewed on 23rd February, 2012. Justice Omollo started his career in the Judiciary as a Magistrate posted to a rural area, to becoming the senior-most judicial officer prior to the establishment of the Supreme Court. He is experienced and technically-adept and has made a major contribution to reforming and speeding up the processes of civil litigation. He has all the general qualities of competence and authority expected of a judge (though it should be mentioned that there were moments during the interview where forcefulness seemed to border on showing a streak of authoritarian impatience).
2) At the outset it should be stressed that the issue before the Board was not whether the judge had been corrupt. The only mention of corruption that could have involved him was unsubstantiated, and so remote as far as he was concerned, as not to enter the scales of evaluation at all. The gist of the critique against him lay elsewhere, namely, an alleged lack of independence and impartiality.
3) A series of complaints in this regard were made by an Advocate – whom I shall not name for reasons of confidentiality.The judges response though dealt adequately with the complaints. The Board noted that the particular Advocate had laid complaints against every judge in the Court of Appeal, all basically to the effect that they are unfairly hostile to him and discriminate against him and therefore against his clients. Some of these complaints were even sent on to the United Nations, the International Criminal Court and other bodies. Clearly there has been a complete breakdown of trust and professional respect between the Advocate concerned and the judiciary, with negative consequences all around. The situation calls for intervention by the Law Society of Kenya (LSK) with a view to achieving an appropriate remedy. The Board will contact the LSK in this respect. It is not in a position to make a finding against the judge in respect of these complaints.
4) Another complaint alleged inconsistency in the manner in which the judge dealt with two separate cases involving employment rights, an inconsistency, it was said, that could be explained only by unprincipled pro-employer bias. The Board was not persuaded that the two cases could be reconciled in the manner argued for by the judge, and could appreciate why employees could feel that they could not rely on the courts for fair and consistent treatment. It was also disturbed by the judge’s apparent lack of capacity for introspection and objective analysis in the matter.
5) A further complaint followed from the well known Rai case Civil Application No. Nai 307 of 2003 (154/03 UR), in which the principal judgment of a five-member Court of Appeal bench presided over by the judge, was given by the judge. This was a case where the presiding judge in the first appeal, a retired Judge of Appeal, had acted in what on the face of it was a serious conflict of interest situation, giving rise to a strong and reasonable perception of bias. In essence, the issue was whether the Court of Appeal should re-open a matter in which it had given a final determination, on the grounds that the interests of justice so required. The Court decided that in the special conditions of Kenya the overall need for finality had to take precedence over the interests of justice in a particular matter. The Board was not fully persuaded of the objectivity displayed by the Court, either in the reasons carefully spelt out in the judgment or by the answers given in the interview. Recent precedent in Kenya had pointed to the right of the Court of Appeal to re-open a concluded matter if very exceptional circumstances existed. The well-known Pinochet case in the House of Lords in England had established that where a judge hearing a matter had had an interest, recusal had been obligatory, and a failure to step down had rendered the proceedings a nullity. During the interview it became clear that a major factor which had influenced the judges had been that the impugned judge had sought to use the application to re-open the matter as a platform for redeeming his honor by telling what he had seen as his side of the story. It may have seemed to the judges that this would have led to an inappropriate and unseemly battle been fought out in a manner that would reflect negatively on the dignity of the Court. Whatever the reason, the Court both refused the application of the impugned judge to submit his own affidavit, and ruled in favor of absolute finality, thus putting an end to the matter once and for all. The Board was left with the strong impression that the Court had not started with the law and ended with the result. Rather, it had for reasons of expediency maneuvered the law in such a manner as to achieve a desired result, namely, to avoid having any dirty judicial laundry washed in public, even if this meant that a manifest injustice perpetrated by a member of the judiciary against a litigant would not be faced up to. The inevitable consequence was to further a public perception that in order to evade examining charges against one of its former members, the judiciary would re-interpret its own precedent, obliterate the charge that court processes had been tainted and leave the apparently wronged litigant out in the cold.
6) A large portion of the interview was taken up with suggestions that in a series of cases with high political importance, the judge had shown a manifest lack of impartiality, bending the law to favour the incumbent President. Members of the Board referred to a number of well known cases, the most prominent of which involved an attempt by a presidential candidate, Mr. Matiba, to submit a petition alleging irregularities in a recently concluded presidential election.
7) The Board was not convinced by the explanation given by the judge in the Matiba 1 appeal as to how, in the light of an express statutory provision excluding any appeal from decisions of the electoral court, his Court could assume jurisdiction to hear the appeal at all. The facts of the case hardly cried out for some kind of remedy against a patent injustice. On the contrary, the appeal in this case was sought against a common-sense and eminently reasonable finding by the appropriate electoral court to the effect that, because Mr. Matiba was paralysed, he could authorize his wife to sign his petition on his behalf. Then, having assumed jurisdiction, the Court of Appeal in Matiba 2 considered the substance of the challenge to the petition. It held that the provision that the petition shall be signed personally by the petitioner had to be read in a peremptory and totally literal way that excluded any possibility of signature by anyone else in any circumstances, even where the petitioner was unable to sign for himself because of physical incapacity.
8) The Board was astonished by the totally unpersuasive technicism of the principal judgment. The Board was even more startled by the terms and spirit of the concurring judgment offered by the judge. The judge’s concurrence went well beyond merely expressing support for the technical correctness of the main judgment. In addition to the concurrence reinforcing the main judgement’s defiance of common sense and closing down of space for democratic contestation, it gratuitously showed grave disrespect for disabled people. This is what it said “Mr. Kariuki asked during the arguments what a Kenyan without both hands and who wants to file a petition is supposed to do. The answer to that question, must await the appearance of such a Kenyan in these courts and a mode adopted by him in executing his petition. In any case, Mr. Matiba was not in that condition. If he were he would have no business wanting to be the President of Kenya.” The judgment went on to castigate the petitioner in an ungenerous and uncalled-for manner that manifested no sensitivity to the fact that he could well have been paralysed as a result of torture, and appeared to curry favour with the incumbent President. The relevant portion of the Judge’s concurring judgment read :
9) The judge was also challenged over a series of decisions he had given in other highly publicized political matters, in all of which he appeared to lean in favour of authoritarian repression rather than open up pathways for democratic expression. A particularly egregious aspect of one of these matters was that the President had publicly, and correctly as it turned out, predicted an outcome pleasing to himself, without the judge responding publicly in any way to what had been open humiliation of his office.
10) There was consensus amongst members of the Board on a number of positive features in the judge’s career. He had given many years of service to the judiciary. He presented highly credible evidence of having been treated in a disrespectful manner by the then President in his early years on the bench, at a time of the one-party state, when signs of independence, judicial or otherwise, were severely responded to. He has undoubtedly contributed in a multitude of signal ways to the life of the judiciary.
11) Equally, there was consensus amongst members of the Board with regard to certain negative features. In particular, it was agreed that the judge had played an active role in frustrating rather than enhancing judicial scrutiny of alleged electoral irregularity, that he had manifested undue partiality in favour of the authorities at a time of severe political repression in the country, and that he had not held back from using his judicial authority to manipulate the law in order to achieve a result that favored impunity, limited democratic expression and curtailed freedom.
12) The Board divided, however, in relation to how the positive and negative features should be balanced out, more especially with regard to how the manifest failures of the judge in the past impacted on his suitability to continue serving on the bench. A substantial majority came to the conclusion that the negative impact of the way in which the judge had adjudicated at a time when his objectivity and impartiality were being tested, was profound and had contributed significantly and in a lasting way to the loss of public confidence in the judiciary in matters where powerful political figures were involved. These members also felt that the judge had not shown sufficient capacity for introspection and an ability to analyse in an objective manner, the severe judicial failures for which he had been responsible at a difficult time in the life of the nation. The judge on his own admission stated that they had failed Kenyans and victims of the Nyayo House torture chambers. But he showed inadequate appreciation of how deeply and negatively the actual judgments he had delivered had impacted on public confidence in the fairness of the judiciary.
13) A minority of members, on the other hand, were of the view that the manner in which he had adjudicated had to be seen in the context of the repression of the times; that he was not a corrupt judge; that he had made many positive contributions to the judiciary over the years and that he still had a major contribution to make in the context of the new constitutional dispensation.
14) However, the decision of the Board, by a very substantial majority, with two members dissenting is that the Judge is NOT suitable to continue to serve. That, therefore, is the Determination of the Board.
15) At the same time the Board wishes to highlight a total absence of any instances relating to corruption in regard to the judge, and in regard to lack of impartiality outside the Rai case and the politically-based judgments cited above. The Board therefore unanimously recommends that appropriate ways be found, if the judge so wishes, for society to benefit from the contributions that the judge will still be able to make in future in terms of facilitating access to justice and learning from the positive and negative aspects of judicial life in the past.
16) The judge has the right to apply for review under Section 22 of the Act, on the grounds upon which the judge may seek a review before the Board. Otherwise the decision of the Board is final and not appealable.
II. HONOURABLE JUSTICE SAMUEL BOSIRE
1) The judge graduated and obtained a Bachelor of Laws LL.B Hons. From the University of Nairobi in 1974, and became one of the early generation of Kenyans of African descent to serve on the bench. He joined the judiciary as a District Magistrate II (Professional), and has worked his way up from being a Magistrate, to becoming a judge of the Court of Appeal. In 1982 he was appointed Judge-Advocate to try mutineers in the Kenya Armed Forces (KAF) following the attempted coup in that year. He served on a number of Judicial Committees and between February 2003 and March 2006, chaired the Judicial Commission of Inquiry into the Goldenberg affair.
2) At the outset it should be stressed that the issue before the Board was not whether the judge had been corrupt. The only mention of corruption that could have involved him was unsubstantiated, and so remote as far as he was concerned, as not to enter the scales of evaluation at all.. An addendum to the complaint to the effect that the judge’s son had specially been given employment by a litigant, was not pursued by the Board when it turned out that the son’s employment had long preceded the litigation.
3) The complaint which occupied more than half the time spent on the interview had been lodged by a concerned ownership of a house in Mountainview estate, Nairobi. After hearing the testimonies relating to the matter the judge, the Board concluded that it was not in a position to make any finding against the judge as far as ownership of the house was concerned, as the matter was subject of a suit before the High Court. The Board noted with some concern, however, that there were marked discrepancies in accounts given by or on behalf of the judge at different stages of the matter concerning whether he or his son had taken the initiative in the purchase. This was a matter that could possibly have been of some relevance as to whether he could be sued in the High Court.
4) A number of complaints were made by an Advocate who had filed similar complaints against almost all judges. The Board finds that the judge’s response deals adequately with the complaints. A reference has been made to complaints by this Advocate in our earlier ruling.
5) A further complaint followed from the well known Rai case Civil Application No. NAI 307 of 2003 (154/03 UR), in which a lengthy and erudite concurring judgement was given by the judge as one of five members of a specially constituted bench of the Court of Appeal. This case has also been discussed in our earlier ruling..
6) The judge was asked a number of questions about his role as Judge-Advocate in trials against persons accused of having participated in or supported the 1982 coup attempt. There was no suggestion that the judge himself had been responsible for the abusive methods of prosecution that were used against many of the accused, including torture and holding court proceedings at night. The queries related primarily to his knowledge of such methods having been used, and any steps he might have taken to counteract them. The judge claimed that in fact he had no knowledge at all of these abuses, either when he was Judge Advocate or later when he was a Resident Judge in Mombasa. Members of the Board were not satisfied that he had not had any knowledge at all of matters that were notorious and about which the whole country was buzzing. A more candid response would have been that he had heard the stories and been disturbed by them but that in the circumstances there was little that he personally could have done. The Board noted, too, a disconcerting lack of outrage today at the fact that cruel and unlawful methods of instilling terror and securing convictions had been used during his watch as a senior functionary in law enforcement, first as Judge Advocate then as Resident Judge.
7) An important part of the interview related to the judge’s role as the chair of the Goldenberg Commission. In particular, he was asked to explain his response to a court order in a case entitled “In the Matter of the Judicial Commission of Inquiry into the Goldenberg Affair.” At a time when the Commission was preparing to wind up its activities, the High Court gave an order that the Commission should summon as witnesses ten prominent political and commercial figures, including the former President Daniel arap Moi, and Parliamentarians George Saitoti, Musalia Mudavadi, Nicholas Biwott and others. The Court further ordered that the proceedings of the Inquiry should not close until the Commission had complied with its statutory duties to issue and serve summons on the persons mentioned above. The judge stated that his duty had been to serve notice on the persons concerned to the effect that they had been adversely mentioned, but there was little a Chairman could do to compel attendance.
8) There were two matters of deep concern to the Board. The first was that the judge, as chair of the Commission chose not to comply with an explicit and precise High Court order made against him as second Respondent in an ex parte matter. He did not seek to challenge the order on appeal. He simply treated it as if it was not binding on him and ignored it. The Commission, in defiance of the court order, completed its work without summoning the witnesses. A more flagrant breach of the rule of law is difficult to imagine.
9) The second was the reasoning advanced by the judge in support of this defiance of a court order. He claimed that the only power he had had was to give notice to the affected persons, and not to compel their attendance; then it was up to the persons concerned to decide whether to come to the Commission to give evidence or not. This assertion flew in the face of an explicit provision in the Commission of Inquiry Act stating that every Commission shall have the power of the High Court to summon witnesses. The judge then went on to contend that the affected persons enjoyed the right to silence, and that he as presiding officer could do nothing about what he called the decision ‘to keep mum’ on the allegations made against them. The Board found this to be an extraordinary reading of the law. The very purpose of the Commission was to dig and delve into matters of great public concern, involving huge sums of money, in relation to which the Commission had to decide whether senior public personalities were implicated. If it had summoned the key witnesses in the manner ordered by the High Court, it would then have been up to the witnesses to decide whether to defy the summons and bear the consequences, or appear before the Commission and claim their right to silence, and bear the consequences. The Commission’s responsibility was to break the silence, and not to invoke it. The effect of the defiance of the High Court order then was to protect the very people the public expected would be called to account for their activities.
10) When asked for his own opinion on why the public appeared to have developed a profound lack of confidence in the judiciary, the judge volunteered two main reasons. The principal one was that of lack of resources; with more resources the judiciary could have dealt with the systemic problems which facilitated corruption. Secondly, he felt that when certain politicians for their own reasons alleged that the courts were corrupt, it was not surprising that the general population developed that opinion of the judiciary. Lacking from his evaluation was any sense that, as report after report had established a profound moral dysfunctionality had reached right into the heart of the judiciary. The Board found that the profound problems facing the judiciary could not be explained away in the simplistic terms offered by the judge. On the contrary, the defensive tone which he adopted was indicative of a resistance to acknowledging the moral and jurisprudential failures which had led to a plummeting degree of confidence in the judiciary which ceased to be looked on as an honest and impartial arbiter of people’s rights.
11) Two other matters were raised with the judge. The first concerned his acquisition of two parcels of land formerly belonging to the Government, one of which the judge had handed back to the Government subject to certain conditions. It was not possible for the Board to gain access to all the relevant documentation and examine the issues with appropriate attention to the details and understanding of the relevant historical and legal context. The Board concluded, therefore, that it could not make any adverse findings against the judge in relation to this matter.
12) The second matter concerned allegations that had been made at the Judicial Service Commission interview to the effect that the judge intervened in an unduly active and aggressive manner in cases that came before him. The Board was not persuaded that the judge’s interventions were appropriate.
13) After weighing up all the pros and cons in the judge’s career as reflected in the record, the Board has unanimously decided that the judge is not suitable to continue to serve. That, therefore is the determination of the Board.
14) At the same time the Board wishes to highlight the absence of any instances relating to corruption in regard to the judge. The Board also notes that the judge has worked on a number of bodies whose function was to improve the workings of the judiciary. The Board therefore unanimously recommends that appropriate ways be found, if the judge so wishes, for society to benefit from contributions the judge will still be able to make in future in terms of facilitating access to justice and learning from the positive and negative aspects of judicial life in the past.
III. HONORABLE JUSTICE EMMANUEL OKELO O’KUBASU
1. The judge commenced his public service as a State Counsel in the Attorney-General’s office. In 1974 he was appointed Resident Magistrate and in 1977 was promoted to the position of Senior Resident Magistrate. During his magisterial days he served in various parts of Kenya until his appointment as a judge of the High Court at the young age of 35 years. In the latter capacity also he served in several stations. In December 1999 he was appointed Judge of the Court of Appeal.
2. At his interview by the Judicial Service Commission in June, 2011 for appointment to the newly established Supreme Court of Kenya, he stated that right from his early days after qualifying as a lawyer he had wanted to become a magistrate and to continue to serve in the judiciary. He derives immense joy from serving as a judicial officer, he added, and feels vindicated in this regard by the fact that he has been in judicial service for just over 38 years.
3. Before the Board, the judge was assisted by Advocate Steven Mwenesi. The Board raised a query in this respect: Mr. Mwenesi had appeared before the Judge when the judge was a member of a three-person bench hearing an application to stay the proceedings of the Vetting Board. The stay was sought pending the hearing of an appeal concerning the constitutionality of the vetting process. The substantive appeal was still pending. Would it not be invidious for the judge to have to rule in future on contentions by Mr. Mwenesi concerning the work of the Board ?
4. In his response, the judge stated that in his long service as a judicial officer he had always ensured that his close social relationship with persons who appeared before him in court did not influence his judicial decisions. For his part Mr. Mwenesi observed that he and the judge were now before the Board in circumstances different from those which had obtained during the proceedings before the Court of Appeal. “If there is a bridge ahead to be crossed, I believe the Constitution which guides the two of us will guide us quite effectively”, he added. The Board accepted this assurance, and places on record its appreciation for the assistance it received from Mr. Mwenesi during the interview.
5. The Board then went on to interview the judge in relation to complaints received against the judge. It did so according to the processes and criteria prescribed by the Constitution and the criteria set out in the Judges and Magistrates Vetting Act, No. 2 of 2011, as referred to above. A number of complaints had been received against the Judge, but only those mentioned in the paragraphs that follow were found to require consideration by the Board.
6. Various complaints were made by the Advocate who has featured and been referred to in the other Determinations. The Board finds that the judge’s response deals adequately with those complaints.
7. Another complaint related to two prison inmates who made seemingly serious allegations against the judge. They were both serving life sentences for murder. The two who were charged and convicted in the appeal relating to a murder. The two had alleged that the judge had presided over the appeal involving the two and six others, and had been influenced by extraneous forces in allowing the appeal of one of them, namely Elizabeth Gachanja, while dismissing those of the others.
The essence of their accusations was that the Judge was communicating by mobile phone with Ms. Elizabeth Gachanja’s husband, Mr. Wilson Gachanja, concerning the said case while the judgment in respect thereof was being prepared; that a clerk in the Court of Appeal was keeping one of the complainants, through his brother, informed of the progress in the preparation of the judgment ; and that money had been paid to one of the three judges (not Justice O’Kubasu). After questioning of the witnesses and further investigation at the Board’s request had been made of telephone records, the Board felt it could not place any reliance on the narrations of the two complainants. There was indeed strong evidence of court officials having been improperly in contact with the prisoners. Yet, there was no dependable testimony to tie the judge to their conduct. In particular, the Board’s investigation revealed that the mobile number alleged to be that of Mr. Wilson Gachanja was in fact not his. More importantly, the sworn testimony of the two was completely discredited through questioning by the Board and by the Judge’s counsel. The fact that the judge’s mobile had twice been used to make contact with this mysterious mobile phone was not enough in itself to raise any inference of wrongdoing against the judge. In the circumstances the Board has concluded that it would be dangerous to give any weight at all to the allegations made by these complainants against the judge. For the purposes of the interview they were accordingly disregarded.
8. An Advocate for a Plaintiff in the case that is referred to herebelow, submitted a complaint by a formal letter alleging that the judge had occasioned a miscarriage of justice ‘through dishonesty, incompetence, slovenness (sic) and negligence’. The complaint revolved around Civil Appeal No.149 of 2007 between Kenya Hotel Properties Limited and Willesden Investments Limited. It concerned damages for trespass.
9. The Advocate accepted that the Vetting Board could not function as a court of appeal to determine whether a decision by the judge in a particular matter was correct on the facts and the law. The gravamen of his complaint, however, was that there were so many features of the judgment that were startling and incongruous, that he had been driven to the conclusion that factors extraneous to the judicial functioning must have been at play.
10. The Advocate stated that, after judgment had been delivered he had learnt that a bribe had been paid to the judge. His evidence on this score, however, was hearsay upon hearsay. Thus, although he testified in a forthright manner, and despite the fact that the Board regarded his willingness to testify as both brave and honourable, the Board concluded that it would be dangerous and unfair to draw any inference at all that a bribe had been paid to the judge. Counsel put it to the Advocate that having heard of the bribe he had pored through the judgment looking for material to substantiate the hearsay statement. The witness replied that the process had been exactly the reverse. Certain findings had been so out of tune with the record and the argument, that the only conclusion he had been able to come to had been that completely extraneous factors had played a role. The story of the bribe had accordingly fitted in with his initial and spontaneous reaction to what he had considered to be the bizarre and inexplicable manner in which the case had been decided.
11. The Board has repeatedly and emphatically assured the parties to the vetting process that the Board will not usurp the role of an appellate court. Its role in the instant matter was to determine whether, in the discharge of his juridical responsibilities, the judge conducted himself in a manner falling either within or outside the values and criteria prescribed in section 18(2) of the Act. In particular the Board wished to ascertain whether the relevant function was discharged with professional competence with reference to fairness, which includes a demonstrable ability to be impartial to all persons and commitment to equal justice under the law. With this in mind, and having carefully considered all the testimony, and having weighed the argument addressed to it by Mr. Mwenesi, the Board made the following findings:
i) The evidence of a bribe having been paid to the judge was too remote to merit being taken into consideration, and must be discounted as far as the interview is concerned;
ii) At the same time the judgment, which was principally authored by the judge, contains anomalies evident from the record concerning whether arguments about the existence or otherwise of the trespass had been considered at all in the judgment; the basis on which damages were computed and the manner in which interest was to be calculated. Taken together and coupled with the judge’s resolute refusal to reconsider and reflect upon what appear to be manifest incongruities, they suggest a worrying lack of capacity on the part of the judge for objective and persuasive reasoning;
iii) The judge displayed a disconcerting lack of candour when questioned about his relationship with a prominent businessman, who had a beneficial interest in one of the parties. The judge denied knowing the businessman, and insisted that he had never heard of him. This latter statement was unconvincing, given that the businessman is a figure very well known to the public in Kenya.
12. The question of the candour and integrity of the judge came to the fore in the last matter considered at the interview. It arose not from a complaint to the Board, but from information that had been supplied some years previously to the LSK, which the LSK had recently forwarded to the Board. As a consequence, by virtue of the power vested in the Board under Section 14 of the Act to gather information from any source, the Board summoned the original source of the information sent to the LSK. The witness testified in the presence of the judge, who was given the opportunity, by himself or through Mr. Mwenesi to question him. That opportunity was indeed exercised.
13. The following matters were common cause. The witness ran a butchery, and one of his customers was the judge. After falling out with his landlord and facing eviction from his premises, the witness got in touch with the judge to find out what he should do. The judge advised him to get a lawyer. He did so, and the lawyer duly filed proceedings in court to get a stay of eviction. The matter came before the judge, who granted the stay. Sometime thereafter, when the witness heard that the judge was going to visit London, he invited the judge to stay as a guest at a Hotel in London, which belonged to the witness’s brother.
14. Two issues were, however, in dispute. The first was whether the judge was aware when he issued a stay of proceedings that the applicant was his friendly butcher. The second was whether the judge did in fact stay as a guest at the Hotel in London at a time when litigation over the tenancy of the butchery had not been finally disposed of.
15) As far as the first disputed issue is concerned, the judge stated that at all material times he had been unaware that the witness had been the litigant in question. Having heard the evidence and questioned the witness and the judge, however, and bearing in mind the general familiarity between the two of them, the Board found this assertion to be quite implausible.
16) With regard to the stay at the Hotel in London , there was a head-on conflict between the judge and the witness. The judge acknowledged that he had received the invitation – thereby confirming the existence of a degree of social familiarity between the two of them. But he was adamant that he had not taken up the offer or even visited the hotel. The witness, on the other hand, was equally insistent that the judge had in fact stayed at the hotel, stating that he had been in London for medical treatment at the time, and had himself visited the hotel and met the judge there on more than one occasion. The Board could find no reason why the witness should invent this story. He made it clear several times in his evidence that he regarded the judge as his friend and had no grudge against him. Indeed, it became clear on a number of occasions when he was testifying, that he was protective of the judge and unwilling to give damaging evidence against him. The Board accordingly came to the firm conclusion that the judge had undoubtedly not been candid when he denied to the Board that he had stayed at the hotel and the bills had been taken care of by the witness. Whatever inference might or might not have been drawn from an acknowledgement by the judge that he had indeed enjoyed the hospitality of the witness’s brother at the time, the Board took a very serious view of the willingness of the judge to attempt to mislead it on the factual issues involved.
17 One final point needs to be made on the judge’s lack of candour. At a stage when proceedings were about to be adjourned, the judge expressed the hope that the Board would not find against him now that he was nearing his retirement. When asked a little while later how close the date of retirement was, it turned out that under the law governing his tenure, he still had 9 years to go.
17 A. In the judge’s favor is the fact that at the time that there was great repression in the country, he refused to succumb to political pressure and was not cowed into convicting accussed persons, against the evidence in political matters. We especially single out the case of Prof. Ngugi wa Thiong’o who had earlier been detained without trial and later brought before the judge on trumped up charges. The judge ordered his acquittal and release.
18 In the final analysis, taking account of all the information properly before it, the Board with one dissent has come to the conclusion that the Honourable Emmanuel Okello O’Kubasu is not suitable to continue to hold the position of a Judge. This is because in terms of section 18(2)(d)(i) and (ii) of the Act, judges are required to determine cases with fairness, “including a demonstrable ability to be impartial to all persons and commitment to equal justice under the law; and open-mindedness and capacity to decide issues according to the law, even when the law conflicts with personal views.”
19 Further, under section 18(2)(c)(iii), they are expected to bear themselves with integrity, “which includes the ability to understand the need to maintain propriety and the appearance of propriety.” It is the Board’s view that the preceding paragraphs have shown that the Judge has failed to meet these two basic requirements.
20 At the same time, the Board wishes to highlight that it received no sustainable information establishing corruption on the part of the judge. The Board also notes the long service that the judge has given to the judiciary. The Board therefore unanimously recommends that appropriate ways be found, if the judge so wishes, for society to benefit from the contributions that the judge will still be able to make in future in terms of facilitating access to justice and learning from the positive and negative aspects of judicial life in the past.
20. The decision is subject to Review under Section 22 of the Vetting of Judges and Magistrates Act, which provides the right to apply for review and the grounds upon which the judge may seek a review before the Board. Otherwise the decision is final and Not appealable.
1) After graduating from the Kenya School of law, one of the first steps that Justice Joseph Gregory Nyamu took in his legal career was graduating from the University of London with LLB Honors. It marked the first of many steps as his career developed from working at the Attorney General’s office as a State Counsel, performing as Assistant Town Clerk in Nairobi in the early seventies, as a Senior Partner in the law firm of Hamilton Harrison & Mathews founded in 1902, being a judge of the High Court of Kenya(appointed in December 2002) and being the presiding judge in the Constitutional and Judicial Review Division of the High Court of Kenya for Seven (7) years, and elevated to Court of Appeal in April 2009.
2) No challenges were made to the general skill and capacity of the judge. Indeed, from his record and the way he conducted himself at the interview, it was clear that the judge exudes competence and authority. He has a fertile legal mind and expresses himself forcefully and fluently. He has a reputation for being a hard worker who delivers his judgments on time. No suggestion was made to indicate that at any time he had conducted himself in a corrupt manner while on the bench. He came through as an energetic judge eager to move away from reliance on pure technicalities towards a more substantive and rights-based approach. It appeared that he had developed a special interest in Alternative Dispute Resolution (ADR), and done pioneering work in Kenya with regard to ADR and Arbitration.
3) The Board considered three challenges made to his suitability to continue to serve as a judge. The first related to a dispute over the transfer of a piece of land at a time when the judge was still a practising advocate. The second concerned allegations made by an advocate of discriminatory and inappropriate behavior by the judge towards him in court. The third concerned the judge’s alleged role as a ‘gate-keeper’ in the High Court, and focused on a series of decisions he had given which were said to manifest a lack of impartiality coupled with a pattern of using judicial authority to grant impunity to the politically powerful and the wealthy.
4. Complaints were received from an Advocate that the judge acted in a discriminatory way against the complainant, disqualifying himself when he should not have done so, and refusing to disqualify himself when he should have done so. The Board found that, although the situation is manifestly unsatisfactory, for purposes of the Vetting process the judge’s responses were adequate. The Board noted that the same Advocate had laid complaints against every judge in the Court of Appeal, all basically to the effect that they are unfairly hostile to him and discriminate against him and therefore against his clients.
5. The challenge that occupied the greater part of the interview related to a complaint concerning a dispute over ownership of a piece of land. A former owner of the property alleged that while in private practice as an advocate, the judge had represented to her, a widow who had inherited a large piece of land, that he would introduce her to a group of golfers who would purchase 200 acres of the land. He had gone on, she claimed, to convince her to subdivide the land into two parcels, and then had fraudulently transferred one land parcel measuring 80.94 hectares to a limited liability company, of which he was a Director. In his response, the judge raised a preliminary objection, stating that the matter was due to be dealt with in a pending civil case before a competent court and for this reason the complaint could not fall for consideration before the Board. He argued that the company had filed a defence in the civil suit filed by the complainant denying liablilty, and the matter was sub judice and had to be excluded from consideration by the Board. The Board rejected his preliminary objection, stating in a considered written response that the sub judice rule did not preclude it from inquiring into the complaint before it, subject to certain safeguards that it spelt out. Stating that he would respect this ruling, the judge then submitted a substantive response.
Although there were some points of overlap between the accounts given by the former owner of the property and the judge, at their core there was a major conflict over the authenticity of documents submitted by the judge. One of these purportedly contained both her signature and his to the effect that she had agreed to transfer the land in dispute to the company and a series of payments he claimed to have made over a period of years in respect of the transfer. The former owner flatly denied that she had either signed the first document, or been aware of the others. All the documents, she claimed, were forgeries.
6. After carefully examining the testimony of the former owner and the judge, and reflecting on the submissions made by their respective counsel, the Board has concluded as follows;
a) There were certain manifest inconsistencies in the accounts given by the former owner, for which she offered various explanations. At the same time, there were aspects of the testimony given by the judge that were not entirely convincing. The Board decided that it was neither called upon nor in a position to determine which one was telling the truth. That was a matter best left to the High Court, which was the body best equipped to deal with it. In the circumstances, the Board declined to make any finding on the merits of the complaint. Similarly, the mere fact that a serious accusation of deception followed by fraud had been made against the judge, could not be put in the scales against the judge in respect of his suitability to be a judge.
b) The matter did not, however, end there. Quite independently of the issue of the nature of the transaction, and whether the judge had behaved dishonorably towards the former owner of the property, questions arose as to whether his conduct in the process was professional and becoming. In this respect, there were three matters of concern.
i) The first related to an apparent lack of candour in the manner in which the judge completed the questionnaires sent to him. In response to the query whether or not there was any pending civil litigation against him, the judge’s response was ‘Nil against me as a person. None whatsoever’. In a purely technical sense, this might have been an accurate answer, in that nominally he was being sued in his capacity as a director of the company. The reality was that he was the effective litigant. The company had no other business outside of its (disputed) ownership of the land. He was the Company’s director, and owned one of the Company’s two shares, the other belonging to his brother, apparently a silent participant in the whole enterprise. In practice then, the judge was the company and the company was the judge, and effectively the case was between the former owner and the judge. Given the fact that the questionnaire was being completed for purposes of vetting, a more candid and less technical response would have been to acknowledge that there was a civil case pending in which he, in his capacity as a company director, was a litigant.
At the time when the main transactions in issue took place the judge was an advocate practicing in a well-established firm with a reputation for high professional standards. On his own version, the manner in which the transactions were processed left a great deal to be desired. The scraps of paper produced by the judge might technically have been sufficient to pass ownership at the time they were written. But they were hardly in the form that one would have expected of an advocate purchasing a relatively large portion of land for investment purposes. Ordinarily, land transfers of this kind would have been recorded in a written, properly-executed and appropriately attested Agreement of Sale. Furthermore, in addition to stating clearly the sale price the agreement would have set out clear terms of payment, dealt with the interest that would accrue while the capital amount was being reduced and provide for appropriate security should there be default. Instead, the unwitnessed documents produced by the judge had been shabby in appearance and shallow in legal effect, providing none of the terms that would normally protect the seller of land.
7. There were two other respects in which there appeared to have been a lack of forthrightness by the judge. The first related to the nature of the company. After hearing all the testimony, the Board was left with the impression that, far from being an active trading company in which the judge had an interest, it was nothing more than a nominal cloak to cover his personal ownership of the land. The judge in fact produced no evidence that the company had passed any resolutions concerning the acquisition and use of the land. Secondly, the judge’s statement in the Civil Court and to the Board that he had placed the balance of what he owed in an escrow account turned out to be inaccurate. The essence of escrow is to guarantee that a disputed sum of money is irretrievably secured and will be available for immediate payment should a defined event, such as making a particular court finding, occur. In reality, the judge had simply deposited an amount of Kshs. 20 Million in a Fix deposit account, with his signature alone being sufficient to move the money. This was not true escrow, and should not have been described as such especially by a Judge.
8. The Board concluded that the manner in which the judge had conducted himself in relation to the dispute, first as an advocate, and then when he was a judge, fell below acceptable standards in terms of professionalism and candour.
9. The third challenge related to the judge’s role as an alleged ‘gate-keeper’ in the High Court. Although the judge objected to the appellation, and a possible implication of connoting something untoward in his conduct as a judge, he acknowledged that he did enjoy the special confidence of the Chief Justice at the time. The result was that whereas other judges would be moved around the country from time to time, he remained stationed in Nairobi, where he was given special responsibility for reporting on Constitutional and Judicial Review matters to the Chief Justice. He was in fact the first presiding judge of the Constitutional and Judicial Review Division of the High Court, and heard a number of controversial matters in which the public had a great interest.
10. Before dealing with the actual role the judge played as a ‘gate-keeper’, reference needs to be made to the manner in which the judge lambasted the person who had allegedly been the initial author of the description. Rather than engage directly with the criticism, the judge attacked the critic; this was a mission of revenge, he informed the Board, pay-back time, by someone who did not play in the same legal league as the judge. In the Board’s view, this assertion was unbecoming of a judge the more so in that it was not made in an unguarded moment but in documents specially and exclusively written for the Board, indicating a disconcerting lack of balance and an inability to engage with and response to objectively to criticism.
11. As mentioned above, in considering the judge’s role as head of the Constitutional and Judicial Review Division, the Board noted that the judge had done much to shift the judiciary from a narrow, technicist view of the law to a more purposive and value-driven one. Yet the actual record of the judge in Constitutional and Judicial Review matters, indicated that this innovative and distinctive mode of legal reasoning, while welcome in itself if properly anchored in legal text, would be no guarantee that adjudication by the judge would enhance public confidence in the judiciary. Indeed, a perusal of a number of significant public law matters handled by the judge established that his expansive approach straddled two distinctive periods of his stewardship. The first reflected a phase of independent judicial thinking which was calculated to encourage public expectations that the courts would function in an objective and impartial manner in which all would be held equally accountable before the law. The second period, however, was to be quite different.
12. Thus in 2004, in Mwolulu, he was one of the authors of an order requiring the Goldenberg Commission to summon for questioning a number of prominent personalities, including the former President, before it wound up its activities. In the following year, he was presiding judge of the Division that showed its independence by upholding the validity of the Referendum. In February 2006 he went on to refuse a stay of criminal investigation proceedings in the first Murungaru case, emphasizing the need for law enforcement agencies to have reasonable workability to attain the values of crime’s detection. On the next day he went even further by underlining the hardships which a Stay would cause to law enforcement, stating that any delay in the conduct of investigations, especially financial, could result in the outcome being defeated, permitting funds to be swiftly transferred to destinations immune to any Court tracing orders. All these decisions manifested the degree of balance, independence and impartiality the public would expect of the judiciary. In each case, the language used was temperate, the decisions accorded with common sense and the results were in keeping with international best practice.
13. From the well-known Saitoti case later in 2006 onward, however, a marked metamorphosis in language, style and judicial philosophy became evident. Generally speaking, commissions of inquiry are set up by the executive branch to investigate matters of public controversy and concern. Their reports are made to the political branch to be dealt with by the political process. Traditionally, then, a court of review will deal only with questions of their powers and the fairness of their processes, and not with the substance of their findings. The Court presided over by the judge, however, broke with precedent in a number of ways. It dealt robustly and extensively not only with issues of jurisdiction and process which other courts had done, but with many findings of the Goldenberg Commission, which it quashed. In doing so, it issued orders not against the Commissioners, who were no longer functioning, but against a document – the Report, and it did so not against any decisions made, but against factual findings. The language used in the order was intemperate and gratuitously disrespectful. As far as public confidence in the courts was concerned, the most startling aspect was the issuing of a permanent stay of prosecution against Mr. Saitoti on the basis that because of the long delay and the wrong findings made by the Goldenberg Commission, Mr. Saitoti would not be able to receive a fair trial. The public could be forgiven if it felt that instead of showing at least a minimum of judicial resolve to keep open the possibility of appropriate accountability for at least one of the major figures whose name had featured prominently in relation to the huge scandal, the judgment drove the last nail of impunity into the coffin against him. The Githunguri Case was clearly distinguishable. The implication that no Magistrate in the country could give a fair judgment was insulting and unacceptable. In any event, the appropriate time and place to challenge any prosecution would have been at the start of proceedings, where the Magistrate concerned could have first heard all the arguments by Mr. Saitoti as well as by the Attorney-General.
14. Not all judges agreed with the far-reaching and novel Saitoti approach to nullifying attempts, even if belated, to hold a senior public figure to account for possible corrupt behavior.
15. When in Koinange, later in 2006, the judge gave a temporary stay prohibiting the Attorney-General from prosecuting the applicant on basis of the evidence gathered by the Goldenberg Commission, the three-judge High Court bench who ultimately heard the application set aside the Stay declaring that the multiplicity of such motions represented gerrymandering through the court corridors, contributing nothing but delay in dispensing justice to the individual accused as well as the community of Kenyans. In their view, the issue whether the disbursements of Kshs. 5.8 billion was illegal should be determined in a proper trial and not be Stayed by the court merely because they related to matters raised four, eight or more years previously. The contrast could not have been starker with the statement made in Saitoti that the Attorney-General could not say after 10 or 15 years that he had discovered new evidence.
16. Had the Saitoti case stood on its own, it could perhaps have been interpreted as an aberration, or even as one of those matters that had to be decided on its own very peculiar facts. But a series of decisions were to follow in which, one after the other, attempts by prosecuting authorities to hold prominent business or political figures to account were frustrated by rulings given by the judge. Moreover, in each case, the rulings appeared to strain the law to such a manifest degree to produce impunity as inevitably to raise doubts in the public mind in relation to the impartiality of the Courts.
17. In Nedermer, the judge issued orders that stopped investigations of, and returned passport to persons whom the Kenya Anti-Corruption Commission (KACC) sought to have investigated for alleged economic crime, namely, having robbed the Kenyan Treasury by getting payment for bogus schemes to acquire military technology. In addition, the judge ordered that no information be published concerning their being suspected of economic crimes and that they not be arrested or charged. The Board found it strange that the judge could base his decision on the notion that the sanctity of arbitration proceedings at the Hague totally exclude criminal investigation by Kenyan authorities of alleged fraud at both ends underlying the whole international transaction. The bizarre reasoning employed was followed by a bizarre initiative by the Court that, uninvited to do so, insisted on suppressing public disclosure of the details of the contract, even though the military authorities preferred to bring them out. Even more startling was the way the court imposed its own views over that of the Secretary for the Defence in terms of how much information about the case should be given to the public. Normally, it would be the Defence authorities who would seek to withhold information from the public in the national interest. A court might then take a peep at the information, and have the last word as to whether or not the national interest would truly be undermined by public disclosure. In Nedermer, the position was reversed – the military authorities were happy for the criminal law to take its course and were eager to lift the cover of secrecy claimed by enterprises it regarded as bogus. Once more, world -wide precedent was ignored and public confidence in the judiciary inevitably received a further dent.
18. Then in Khamani (2007), one of the Anglo-leasing cases, the judge struck down measures aimed at preventing the flight of persons suspected of corruption and serious economic crimes. If the outcome of the case was necessitated by the law, the result would have been unfortunate but inevitable. In the Board’s view, however, the outcome was achieved by a strange and tortuous reading of the law. Accepting that there was a pressing social need to control corruption and economic crime, the Court correctly stated that the right to a passport could only be limited under the then Constitution if the limitation fell within four prescribed categories. What was strange about the judgment, however, was its reading of these four categories in so narrowly a way to exclude from the words “public morality” and “public order”, corruption on a massive scale reaching into the highest levels of the State. Indeed, it is difficult to conceive of anything more deleterious to public morality and public order than the involvement of the institutions of the State itself in criminal corruption. Later, First Mercantile Security case, heard later in that year, the judge gave an initial stay of prosecution in another Anglo-leasing matter. The Board noted that Lady Justice Lesiit upheld the stay, but that her decision was overturned very recently on Appeal.
19. Finally, the thread of what must have appeared to the general public as being a judicial process of furthering the untouchability of those in high office, was lengthened and strengthened by the decision in Kotut. The judge’s decision in that matter effectively immunized the then Governor of the Central Bank of Kenya against prosecution for allegedly permitting the fraudulent movement out of the country Kshs. 3.5 billion. The Governor’s claim that, although he had known of the movement of the money, he had had no knowledge that the process was fraudulent, was precisely the sort of issue that should have been left to the trial court. Instead, the judge’s decision had pre-empted any possibility of the Governor being put on trial. The Board was not convinced that the mere fact that negative findings had been made against the Governor by the Goldenberg Commission, would inevitably have prevented a Kenyan Magistrate from dealing with a prosecution against the Governor with an open mind. Again, the Board noted the use of relentless repetition rather than calmly-stated logic, as the basis for the judge’s ruling, once more indicative of a lack of balance.
20. The judge was asked to comment on the claim made by his critic that decisions like the above had encouraged public perception of a judiciary shielding prominent personalities from corruption charges. His answer was two-fold. In the Khamani case, he said, the order that passports be returned would in fact have aided investigations and prosecutions, because the alleged masterminds could now use the passports to return to Kenya to face the music. Secondly, the judge pointed out that he had given decisions against the government in cases involving the environment, as well as one where he had nullified a huge award of costs that poor people were being called upon to pay. In the Board’s view, these responses evaded the question put to him, and failed to show appreciation of the damage done to public expectations of judicial impartiality caused by the series of judgments referred to above.
21. After weighing up all the pro’s and con’s in the judge’s career as reflected in all the material before it, the Board has unanimously decided that the judge is not suitable to continue to serve. That, therefore, is the determination of the Board.
22. At the same time, the Board wishes to highlight the absence of any instances relating to corruption in regard to the judge. The Board also notes that the judge has made a signal contribution to the development of Alternative Dispute Resolution (ADR) and arbitration. The Board therefore unanimously recommends that appropriate ways be found, if the judge so wishes, for society in Kenya and abroad to benefit from the contributions the judge will still be able to make in future in terms of facilitating access to justice and learning from the positive and negative aspects of judicial life in the past.
23. Section 23 of the Act provides the right to apply for review and the grounds upon which the judge may seek a review before the Board. Otherwise the Determination is final and not subject to appeal.
DETERMINATION CONCERNING THE OTHER JUDGES
Having taken all relevant considerations as set out in the Introduction the Board found that the following judges are suitable to continue to serve . These are
- Honourable Justice Philip Tunoi
- Honourable Justice Philip Waki
- Honourable Justice Onyango Otieno
- Honourable Justice Erastus Githinji
- Honourable Justice Alnashir Vishram
However, in the case of Justice Vishram the Determination was by a majority and the Dissenting Judgments and reasons therefore of three of the nine members has been availed to the Judge.
One of the tasks imposed by the Act on the Board is to examine the work record of each judge, including past adjudications. It is in this connection that the Board was invited to look at a decision of the Court of Appeal in a well-known case in which Mr S K Macharia, a prominent business person, had been the litigant. Mr Macharia contended that three of the judges being interviewed by the Board, who had sat in the matter, should not be considered suitable to remain on the Bench. This was because of what he said was the manifestly biased manner in which, overturning a High Court ruling in his favour, they had made findings against him that had flown in the face of clear evidence that he had been unlawfully coerced, by pressure emanating from the then President, to pay K sh56 million to the Kenya Commercial Bank.
The Board must commend Mr Macharia for his steadfastness in pursuing the matter and assisting the Board with comprehensive materials to back up his contentions. He presented his arguments in a forthright manner and responded with dignity to prolonged questioning by counsel and Members of the Board, as well as to observations by the judge. Much of the material he placed before us was taken from the record in the appeal. It told a painful story of a hard-working and creative entrepreneur not only being forced by economic necessity to surrender a potentially profitable paper-making firm, but also compelled as a result of political interference to pay out what was then a huge sum of money in a manner that unjustly enriched the Bank.
At the same time, much of the most telling detail of a story that was necessarily lengthy and complex, had not been presented in evidence at the trial. Furthermore, the issue, which turned essentially on questions of fact, is still potentially live. One of the judges stated that if he had had knowledge of all the information now placed before him, he would in all probability have given a different decision. This judge proposed that the matter be referred to the Supreme Court, which could hear it if it could be shown that a grave miscarriage of justice was involved and it was in the public interest for the appeal to be heard.
The Board is of the view that it is not itself in a position to make final determinations on the issues of coercion raised. The decision of the Court of Appeal was given in 2008, when no question of seeking to curry favour from the former President could arise. And central to the decision was a document signed by Mr Macharia, on the advice of his advocate who was noted for his courage and willingness to challenge injustice.
In the circumstances, the Board expressly leaves open the question of either the correctness or the propriety of the decision supported by the three judges. This is a matter that can be dealt with if application is made to the Supreme Court, where the full panoply of evidence can be considered and argument from the side of the Bank can also enter the reckoning.
These then are the Determinations of the Board in regard to the 9 judges of the Court of Appeal. The Board will interview the remaining two judges of the Supreme Court who are subject to vetting namely Justice Ojwang’ and Justice Ibrahim on 26th and 27th April, 2012 respectively, followed by judges of the High Court.
NGOTHO WA KARIUKI
 See the judgment of the Constitutional and Human Rights Division of the High Court in Nairobi High Court Petition No. 146 of 2011, Dennis Mogambi Mong’are –vs- The Attorney General & 3 others, at par. 43. The Petitioner unsuccessfully sought a declaration that Section 23 of the Sixth Schedule to the Constitution together with the Vetting of Judges and Magistrates Act are unconstitutional (Paras 103 to 105. For the text of Section 23 see paragraph 9 below.
 See Article 1(1) of the Constitution of the Republic of Kenya (2010).
 See Article 263 of the Constitution.
 The People’s Choice: The Report of the Constitution of Kenya Review Commission (2002) at 52.
 The committee was chaired by Honourable Justice Ringera.
 The report of the Integrity and Anti-corruption Committee of the Judiciary, 2003 (the Ringera Report) at 46.
 International Commission of Jurists(ICJ) Report, Kenya: Judicial Independence, Corruption and Reform, April 2005 at 17-26.
 International Legal Assistance Consortium (ILAC), ‘Restoring Integrity: An assessment of the needs of the justice system in the Republic of Kenya’ at 52.
 Final Report of the Task Force on Judicial Reform (Ouko Report)(2010) at 73.
 The Independent Review Commission (IREC) Report (Kriegler Commission Report) stated that “… during the 2007general election period in Kenya, a material contributor to the tension at Kenyatta International Conference Centre (KICC), broadcast live to the country, was the absence of an effective Electoral Dispute Resolution (EDR) mechanism to resolve the mounting challenges to the integrity of the results from Kibaki strongholds. The response by Electoral Commission of Kenya (ECK) Chairman Kivuitu and Minister of Justice Martha Karua, directing challengers to the courts, merely served to exacerbate matters. ODM representatives, adverting to the appointment of five new judges a few days earlier, made plain their distrust of the judiciary and insisted on their challenges being resolved there and then, if necessary delaying the announcement of the final result”(the commission was headed by Hon. Justice Johann Kriegler).
 Six months after the contested presidential election led to widespread post-election violence, a Gallup Poll conducted across all provinces in Kenya suggested that confidence in the judicial system had declined from 55% in 2007 to only 36 % in 2008. When the poll was repeated in April 2009, just 27% of Kenyans expressed confidence in the judicial system, half the percentage that had expressed confidence in 2007. (Gallup, Lacking Faith in Judiciary, Kenyans Lean Toward The Hague. Available online at http://www.gallup.com/poll/122051/lacking-faith-judiciary-kenyans-lean-toward-hague.aspx.
 Under Agenda Item IV (Long Term Issues and Solution Matrix of Implementation Agenda) of the Kenya National Dialogue and Reconciliation (KNDR), comprehensive reform of the Constitution and key governance institutions including the judiciary were identified as part of the long term solutions to the crisis that followed the disputed elections. Similarly, the Medium Term Plans (2008-2012) identified judicial reform as an important aspect of the economic, social and political pillars of vision 2030.
 Article 159(1).
 Article 159 (2) (a-e).
 Article 160(1). The Constitution also guarantees the Judges security of tenure by providing that no office of a Judge shall be abolished while there is a substantial holder, that the remuneration and benefits payable to the Judges shall not be varied to the disadvantage of that Judge and that a member of the judiciary is not liable in action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function (Article 160(2-5)
 The Judicial Service Commission is established under Article 171 with the mandate to promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice ( Article 172 of the Constitution).
 However, appointments to the office of the Chief justice and Deputy Chief Justice by the President must be in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly ( Article 166(1)(a) of the constitution).
 The Supreme Court is established under Article 163(1) with exclusive original jurisdiction to hear and determine disputes relating to elections to the office of President arising under Article 140 among other powers(see Article 163 (3-9).
 Article 10(1-2) of the Constitution declares that the following national values and principles of governance are binding on all state organs (including the judiciary) when applying or interpreting the Constitution.
a) Patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people,
b) Human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised,
c) Good governance, integrity, transparency and accountability, and
d) Sustainable development.(Article 10(2)