Six judges lose out after vetting

The chairman of the Judges and Magistrates Vetting Board Sharad Rao was yesterday accused of allowing personal rivalry to influence the decision to sack Supreme Court Judge Mohammed Ibrahim and High Court Judge Roselyne Nambuye. The two judges were dismissed because they had delayed delivering ruling on cases they have been hearing.

Senior counsel Joseph Khaminwa read mischief in the board's decision saying the old rivalry between Justice Ibrahim and Rao might have influenced the decision. “When we fighting for multiparty, we were detained with Ibrahim at Manyani. At the time, Rao was the deputy public prosecutor, the Attorney General’s assistant. The impression created is that Ibrahim was placed at a disadvantage appearing before a board chaired by someone with whom they were at cross purposes when it came to the reform agenda many years back," Khaminwa said asking Rao to resign as the board chairman. "Rao has no moral authority to vet judges when in the recent past, he was among those who barred the reform path by detaining people without trial,” Khaminwa added.

However, Law Society of Kenya chairman Eric Mutua welcomed the decision and said there was no conflict of interest in Rao chairing the board. “I am not sure if Rao dealt with Ibrahim's matter because those detentions did not entail prosecutions. They were detentions without trial. In any case, the vetting board did not comprise of Rao alone, it was a panel,” he said. Mutua said Justice Ibrahim should have demanded that Rao disqualify himself from vetting him. Since he did not do so and participated in the vetting, it can be assumed that Justice Ibrahim waived that right.

Khaminwa said it was immoral and unconstitutional for Rao's board to continue with the vetting even though there was application before the Court of Appeal seeking to scrap the board. "We are shocked that the board has continued with its work in what is clearly a manifestation of impunity which we must condemn,” Khaminwa said.

Dismissing the two judges, the board said their inordinate delay in delivering judgments had contributed to the erosion of public confidence in the judiciary and had in the process, denied the litigants justice. “Any undue and inordinate delay in delivering judgments and rulings by a particular judge must inevitably bear on his or her suitability to remain on the bench," said the Board.

The board said Justice Ibrahim had failed to deliver rulings in 264 cases, some of them going back eight years ago. “The delays were unacceptable, carried like a hump on a camel’s back form one posting to the next. Literary hundreds of litigants from every walk of life felt robbed of their right to have their case finally determined,” said the board of Ibrahim's delay.

Justice Ibrahim's removal from the Supreme Court will adversely affect its work as he becomes second judge—after deputy Chief Justice Nancy Baraza—to be removed from the bench. Justice Baraza 's conduct is the subject of a tribunal appointed to investigate a New Year's eve incident at a city shopping mall where she allegedly pulled out a gun and threatened a security guard.

Ibrahim was also recently appointed to the newly established Working Committee of Elections as the chairman. The board said it had considered giving Justice Ibrahim a chance to complete the pending cases but was convinced that the judge will fail to do so just like he had done on two past occasions. “He had committed twice himself to clear the backlog, to the Law Society of Kenya and the Judicial Service Commission, and twice failed to follow through,” said the board.

The board found Justice Nambuye's writing style, poor management practices, inefficiency in drafting of judgments had contributed to the delay in delivering decisions. She was appointed to the Court of Appeal eight months ago. The board however cleared Justices J.B. Ojwang of the Supreme Court and appellate court judges Justices Paul Kihara Kariuki and Hannah Okwengu.

Complaints that Justice J.B. Ojwang' had delayed delivering rulings and judgements were dismissed after the board established that the delay was due to illness which necessitated the judge's frequent absence. However, they noted that once the judge returned to work, he expeditiously finalized the 145 pending cases before his appointment to the Supreme Court.

The board also dismissed allegations that Justice Ojwang had engaged other persons to assist him in clearing the backlog of cases and writing the rulings. The board reserved its decisions on justices Kalpana Rawal, Martha Koome and David Maraga because they are listening to an application on the election date, which is before the Court of Appeal.

The board said it will announce the date on which to deliver its decisions on Appellate judge Wanjiru Karanja and High Court Jessie Lesiit. The board also rejected applications for review filed by three other long-serving judges—Justice Riaga Omolo, Justice Emmanuel O’Kubasu and Justice Joseph Nyamu. With the dismissal, the Chief Justice Willy Mutunga can now go ahead and advertise their positions as the board's decision is final.