SEVEN judges are still drawing their salaries despite being dismissed by the Vetting Board in July. The judges are still being paid because their removal has not yet been gazetted by President Kibaki. Their salaries can only be stopped after their dismissal has been formally gazetted.
Chief Justice Willy Mutunga and the Judicial Service Commission have to recommend the appointments and dismissal of judges to the President. "The CJ and the JSC cannot interfere with their terms of service because they are not the appointing authority," said a source who requested not to be named.
Justices Riaga Omolo, Samuel Bosire, Emmanuel O'Kubasu and Joseph Nyamu, all of the Court of Appeal, were dismissed following recommendations of the Vetting of Judges and Magistrates Board. The Vetting Board rejected their appeals to have their cases reviewed. However the Vetting Board agreed to listen to the appeals of dismissed Justices Mohammed Ibrahim of the Supreme Court, Roselyn Nambuye of the Court of Appeal and Jeanne Gacheche of the High Court. The Board is yet to rule on their appeals.
Yesterday, Chief Registrar of Judiciary Gladys Shollei promised to issue a comprehensive statement on issues surrounding the dismissed judges. The Vetting Board said its mandate ends with the determination that a judge is either suitable or unsuitable. It thereafter communicates the determinations "to the relevant authorities", the judge in question, and the employer, the JSC.
"Our mandate ends there. We do not follow up from there and neither is it in our interest to do so," Vetting Board CEO Reuben Chirchir told the Star yesterday. He said he was not aware that the former judges are still getting paid. Law Society of Kenya vice chair Lilian Omondi complained that it is the height of dishonesty to continue paying the judges because they have not been formally degazetted.
She said both the Vetting of Judges and Magistrates Act and the constitution are clear that the determination of the board is final. "They are supposed to leave office and all its benefits immediately the verdict is read otherwise what was the purpose of the whole exercise? Its an illegality that cannot be condoned," she said.
According to Section 21 (2) of the Vetting Act, once a judge or magistrate has been declared unsuitable by the board and informed, he or she shall "be deemed to have been removed from service." Article 166 (6) of the Constitution says the remuneration and benefits of a judge who is under suspension from office shall be adjusted to one half until such a time when a judge is removed or reinstated into office.
But Article 168 (4) says the remuneration and benefits of a judge shall not be varied to his or her disadvantage. "For the period of review, it would be legit to pay them half the salaries but it would be illegal to pay them after the reviews are concluded," Omondi said.
Ibrahim and Nambuye were recommended for because they had delayed in delivering judgements for up to eight years. "The delays were unacceptable, carried like a hump on a camel's back from one posting to the next. Literally hundreds of litigants from every walk of life felt robbed of their right to have their case finally determined," the Vetting Board said of Justice Ibrahim.
According to the board, Justice Ibrahim had 264 pending judgments and rulings dating back as far as 2004 when he served as a judge of the Commercial Division of the High Court. Most of the pending decisions came from his last station as the Judge of the High Court in Mombasa.
The board refused to give Ibrahim three months to deliver the judgements. "The delays were so prolonged, so extensive, and so massive in impact, that it would have been giving the judge false hope to believe that if he cleared the backlog by the end of August, he could be considered suitable to remain on the bench," the board said.
Reportedly Justice Ibrahim has in fact now completed all the outstanding judgements and this will be the basis of his appeal. On Justice Nambuye, the board said that despite being fluent and articulate, delays "weave through her judicial record". "Systematic factors undoubtedly contributed to the backlog of cases for which she was responsible, but the poor management practices of the judge herself played a leading role in sustaining and exacerbating delays in the delivery of her judgments and rulings," said the board.
The Board said that Justices Omolo, O'Kubasu and Nyamu did not meet the criteria for review. The Vetting Board chaired by Sharad Rao did review the case of Justice Bosire but dismissed his appeal. "His conduct as the chair (in the commission of Inquiry into the Goldenberg Scandal) was thus seen by the public as providing a crucial link in the chain of impunity that linked many public authorities," the board decided.