High Court’s Jurisdiction Over Vetting Of Judges And Magistrates
"Jurisdiction is everything. Without it, a Court has no power to make one more step.”
Peter O. Ngoge V the Vetting Of Judges and Magistrates Board and Another
High Court of Kenya at Nairobi
D.S. Majanja J.
May 7, 2012
The High Court has held that it has no jurisdiction in matters arising under the Vetting of Judges and Magistrates Act, 2011 (VMJA). The decision was made in an application by Peter O. Ngoge, an advocate of the High Court of Kenya brought under Order 53 rules 1, 2, 3 of the Civil Procedure Rules, Section 8 and 9 of the Law Reform Act and Articles 10, 20, 22, 23, 27, 34, 35, 47, 50 and 159 of the Constitution.
In summary, Mr. Ngoge was aggrieved by the decision of the Vetting of Judges and Magistrate’s Board (“the Board”) given on April 25, 2012 titled “Determinations Concerning the Judges of the Court of Appeal” hereinafter referred to as “the decision.” In the decision, the Board made certain findings as to the suitability of the Judges of the Court of Appeal in terms of section 23 of the Sixth Schedule to the Constitution.
Mr Ngoge complained that he had been condemned unheard contrary to the rules of natural justice as he was not notified of the hearings which were conducted in camera and he was not given an opportunity to present or prove his complaints in violation of Article 10, 22, 34, 35, 47 and 50 of the Constitution. He also contended that he was discriminated against contrary to Article 27 of the Constitution as he was not mentioned in the decision as one of the complainants, Mr S. K Macharia.
Mr Ngoge’s complaint in respect of violation of his rights was that he filed various complaints against each judge of appeal being vetted hence he ought to have been heard in respect of each and every complaint and given an opportunity to review each judge’s response to his complaint.
He further complained that he was the subject of an adverse comment at Part VIII titled “FINDINGS AND DECISION,” Paragraph 3, page 11 of the Board’s decision where it was observed that;
“(3) A series of complains in this regard were made by an Advocate – whom I shall not name for reasons of confidentiality…the Board noted that that particular Advocate had laid complaints against every judge of the Court of Appeal, all basically to the effect that they are unfairly hostile to him and discriminate against … clearly, there has been a complete breakdown of trust and professional respect between the Advocate concerned and the judiciary…the situation calls for intervention by the Law Society of Kenya (LSK) …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.”
Mr Ngoge argued that these remarks were in reference to him since he filed complaints against all the Judges of Appeal. By stating that it would refer the situation to the Law Society of Kenya (LSK) for an appropriate remedy, he asserted that the Board violated his rights. He urged the court to intervene and vindicate his fundamental rights and freedoms as this reference to him by the Board affected him negatively in the eyes of his clients and the public. He hence urged the Court to grant leave to commence judicial review proceedings and for such leave to operate as a stay of the proceedings of the Board as he had established an arguable case to proceed to the substantive stage. He stated that the Board had to be guided by the values of the Constitution and the court could not allow the Board to violate his fundamental rights.
The application was opposed on the ground that the Court lacked jurisdiction to intervene in matters of Board under the Constitution. As regards whether the proceedings should be heard in public, counsel submitted that the section 19(5) of the VJMA was clear that the proceedings were private except at the instance of the judicial officer concerned. On the whole, it was submitted that there were no grounds shown to warrant the Court’s intervention. Counsel for the Attorney General, concurred with the brief submissions and added that the Court could not intervene in the Boards’ proceedings as this was barred by section 23 of the Sixth Schedule to the Constitution.
The court noted that it had a wide discretion to allow or reject the application for leave. The test was whether the applicant had an arguable case which could be heard when the substantive motion was filed. The matter concerned the vetting of judges and magistrates which was carried out pursuant to section 23 of the Sixth Schedule to the Constitution. Section 23 (1) provided for the establishment of the Vetting of Judges and Magistrates Act, 2011 (VMJA) and section 23(2) provided; ''(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.''
Pursuant to these provisions, the court noted that Parliament enacted the VMJA which came into force on March 22, 2011. Section 6 of the VJMA establishes the Board and section 13 provides for the functions of the Board as being, ‘to vet judges and magistrates in accordance with the provisions of the Constitution and this Act.’ The court opined that the Board as constituted therefore exercised a mandate and function vested in it by the Constitution and the VJMA.
The court affirmed that the Board had already completed its work in respect of the vetting of Court of Appeal Judges subject to the right of review under the VJMA. In light of section 23(2) of the Sixth Schedule to the Constitution, the Board’s decision was part of a process leading to removal of a judge and could not be the subject to question in, or review by, any court.
In substance Mr Ngoge sought to review the decision of the Board in so far as it applied to complaints lodged by him. That, according to the court, would be a collateral attack on the Board’s decision and was not permitted by the Constitution. The court referred to the case of Dennis Mogambi Mong’are v Attorney General and Others Nairobi Petition No. 146 of 2011, where the court held that the Sixth Schedule was part of the Constitution and could not be challenged on the basis of any inconsistency with the Constitution.
The court affirmed that the order of certiorari, if granted, would lead to quashing the decision of the Board. It was therefore in conflict with the direct provisions of the Constitution and in the circumstances, the proceedings in so far as they would lead to a re-opening or reconsideration or review of the Board’s decision or process leading to the removal of a judge could not lie in law and were not permitted by the Constitution.
Though the court concurred with Mr Ngoge that where there is a breach of natural justice, the Court must intervene to correct such a violation, it noted that the proceedings under the VJMA were sui generis, the Board was empowered to regulate its procedure and in so doing receive complaints. A challenge to the Board’s procedure agitated by the applicant would inevitably lead to questioning the decision of the Board and would inevitably breach the wall established by the Constitution to protect the decisions and process of the Board.
As regards the comments made by the Board in reference to an unnamed advocate, the court pointed out that it took into account the values of the Constitution and the rights of the unnamed person in declining to name the person referred to. There was hence no infringement of the applicant’s rights in the case, it stated. If the applicant was aggrieved by the fact that he was the unnamed person condemned, he had to await action by the LSK on the issue referred to it. It was at that stage that Mr Ngoge, if he was the subject of the consideration by the LSK, would have all the rights to a fair hearing accorded to him, the court held.
Finally on the issue of orders of prohibition and mandamus against the provisions of the VJMA that excluded the public from hearings of the Board, the court opined that the provisions for confidentiality were intended to protect the inherent dignity of judges and magistrates accorded to them by the Constitution. The court was not permitted, directly or indirectly, from proceeding with the inquiry.
In conclusion the court found that to allow the application in the circumstances of the case would be to circumvent the constitutional prohibition inherent in section 23(2) of the Sixth Schedule to the Constitution. Hence, the court had no jurisdiction to embark on the inquiry suggested by the applicant.