A dispute between the Judicial Service Commission (JSC) and three magistrates sacked seven years ago after failing to account for huge sums of money in their bank accounts has now moved to the Supreme Court.
In a petition of appeal, the commission wants judges to overturn a Court of Appeal judgment that ordered a fresh hearing of the trio’s case against the Judges and Magistrates Vetting Board, which found them unfit to serve.
It wants the Supreme Court to determine whether Section 23(2) of the Sixth Schedule of the constitution ousts the authority of the High Court to review the decisions of the board.
The appellate court arrived at a finding that the said law only excluded the judges but not magistrates from challenging decisions of the board. In its judgment on October 22 last year, the Court of Appeal found that magistrates were not barred from challenging the board’s decision.
In a judgment dated June 22, 2018, the High Court had found that the law barred both judges and magistrates from moving to court and that the board’s decision was not subject to question by any court.
Supreme Court
At the centre of the dispute in the Supreme Court is the true meaning and interpretation of Section 23(2) of the Sixth Schedule, which blocks courts from questioning or reviewing the determinations of the board in relation to the removal of a judge from office but does not expressly mention magistrates.
The board had in 2016 found the three magistrates — Michael Kizito Oduor, Timothy Okello Odiwour and Bernard James Ndeda — unsuitable to serve over various disciplinary issues, such as allegations of poor judgment writing skills, being partisan and using their positions to enrich themselves.
They have been fighting the board’s decision on several grounds, among them that the process was conducted in a manner that violated their constitutional right to a fair trial. They also rejected the board’s decision on grounds that their right to be presumed innocent was violated. The board was chaired by Mr Sharad Rao, a retired prosecutor.
In 2016, the magistrates’ applications to the board to review the decisions were all dismissed, prompting them to escalate the dispute to court.
However, a five-judge bench of the High Court dealt them a blow after finding that Section 23(2) ousted courts’ power to examine decisions rendered by the board on suitability of judges and magistrates. They were aggrieved by the verdict and moved to the Court of Appeal, which overturned the High Court’s findings.
The appellate judges said in a majority decision that the operating law only barred courts from dealing with petitions filed by judges against the board. The court said omission of the word ‘magistrate’ in the law was not an accident, hence the High Court was not deterred from hearing the magistrates’ case against the board. The Court of Appeal faulted the High Court for failing to consider the petitions on merit.
Justices Patrick Kiage and Sankale Ole Kantai said the law meant that all judges and magistrates were to be vetted, but only judges were excluded from questioning a consequential removal or a process leading to such removal.
However, Justice Hannah Okwengu dissented and held that the High Court arrived at the correct conclusion in determining that it had no jurisdiction to review the determination of the board in relation to the suitability of judges and magistrates.
While admitting the petition of the JSC, the Supreme Court found that the appeal is arguable.
“The issues raised therefore touch on the jurisdiction of the High Court to determine the petitions. We find this issue to be pertinent and properly before this court for determination,” said Deputy Chief Justice Philomena Mwilu.
The other judges are Justices Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko. They also suspended judgment of the Court of Appeal pending the hearing and determination of the matter. BY DAILY NATION