PRESIDENT Mwai Kibaki was yesterday prevented from de-gazetting four judges rejected by the Vetting Board.
In a unanimous decision, Justices Jonathan Havelock, Pauline Nyamweya, Alfred Mabeya, Joseph Mutava and Eric Ogolla said the judges might suffer irreparable damage if they were de-gazetted as judges before their appeals are heard.
The ruling asserted the authority of the High Court over the board which was set up by the Vetting of Judges and Magistrates Act, 2011. The act specifically stated that the decision of the Vetting Board was final and not subject to appeal or review.
Schedule 6 (2) of the constitution states that the removal of a judge "shall not be subject to question in, or review by, any court." However the High Court yesterday directed that the vetting process, which has been on hold for close to a month, should proceed but the Board "should conduct the process within the confines of the law."
The four judges affected are Court of Appeal judges Riaga Omolo, Samuel Bosire and Joseph Nyamu. Lady Justice Jeanne Gacheche of the High Court was also recommended for removal. They were rejected in April by the Vetting Board.
The High Court directed that each appeal be heard on its own merit and gave each party a hearing date between November 26 and 30. The Law Society of Kenya yesterday said that they would be appealing against the High Court ruling. The LSK had previously questioned the power of the High Court to supervise the board.
LSK lawyer Charles Kanjama said the decision would set a bad precedent if it is left standing. The LSK believes that the decisions of the Vetting Board are final and cannot be questioned by any court.
In their ruling, the judges said that the High Court can review the decisions of the Vetting Board but only where it is shown that the board exceeded its constitutional and statutory mandate.
The judges also said that the High Court has the power to adjudicate upon alleged breaches of fundamental rights and freedoms. The judges insisted that the High Court has the powers "to issue, review, uphold or vacate conservatory orders in connection with the vetting process."
They said that the High Court has a duty "to carve out a delicate balance that would ensure that the exercise of its jurisdiction does not undermine the substratum of the vetting process or whittle down the clear intention of the ouster clause of shielding the mandate of the Vetting Board from judicial intrusion."
The court said that it would be "abdicating its constitutional mandate if it downed tools in the face of legitimate quests for intervention." Lawyers for the rejected judges argued that the Vetting of Judges and Magistrates Board is an inferior body to the High Court.
In the main petition, the ousted judges also argue that the Vetting of Judges and Magistrates Act was not amended after the mandate of the board expired on May 23.
They said that Parliament only amended Section 2(2) of the Act,which does not extend the time. The petitioners argue that all vetting board decisions after May 23 are null and void.
The High Court asked Justices Mohammed Ibrahim of the Supreme Court and Roselyn Nambuye of the Court of Appeal to appear before them on November 2 to deterrmine whether they should be re-vetted. According to lawyers John Khaminwa and Stephen Mwenesi, the Vetting Act has no provision for re-vetting.