1 November 2012

Kenya: De-Gazetting Ruling Must Be Overturned


THE High Court blocked the de-gazetting of four judges on Tuesday. The Vetting Board had previously rejected the judges as unfit to serve in the judiciary.

The Vetting Board was set up by the Vetting of Judges and Magistrates Act 2011 which stated that the decisions of the board would be final.

This was based on the transitional provisions of the constitution which provided in Schedule 6 (2) that the removal of a judge "shall not be subject to question in, or review by, any court."

However the High Court has insisted that the four judges have the right of appeal and have set a hearing date for them in November. In other words, the High Court has declared itself superior to the constitution.

Whatever the rights and wrongs of Section 6 (2), that clause is in the constitution and can only be changed by a referendum or a two-thirds majority in Parliament.

The implication of this ruling is that any clause in the constitution can now be overruled by the High Court. This High Court judgement must be taken on appeal to the Supreme Court. Otherwise the new constitution will just become a meaningless piece of paper.

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