MPs are planning to change today to block the courts from hearing any matter concerning judges who the vetting board found unfit to serve.
This comes after the Court of Appeal yesterday stopped the cases of seven judges found unsuitable by the Vetting of Judges and Magistrates Board pending an appeal filed by the Law Society of Kenya.
The cases of the seven judges were due to start yesterday but will now have to wait until they determine whether the High Court has jurisdiction to supervise the vetting board.
A bench of five High Court judges in October ruled that they could hear the petitions by the aggrieved judges and set hearing dates beginning yesterday.
This was despite the transitional provisions of the new constitution which clearly states that decisions of the vetting board "shall not be subject to question in, or review by, any court."
The LSK, the Board, Judicial Service Commission and the Attorney General appealed against the October High Court decision arguing that any decision of the vetting board is final because of Section 23(2) of the Sixth Schedule in the Constitution.
Yesterday the Appeal court said the issue of whether judges can be re-vetted, a matter raised by judges Mohammed Ibrahim and Roselyn Nambuye, can be considered during the LSK appeal.
The judges found unsuitable in April were High Court judge Jeanne Gacheche and Court of Appeal judges Riaga Omolo, Samuel Bosire, Emmanuel O'Kubasu and David Nyamu. Justice Ibrahim and Nambuye are set to undergo vetting afresh after the board nullified their earlier decisions, sending them home.
In the appeal, LSK argues that the ruling of the High Court would set a dangerous precedent as the High Court has no jurisdiction over a body shielded by the constitution.
MPs have prepared several amendments to the Vetting of Judges and Magistrates Act, 2011. One expressly provides that removal from office of any judicial officer under the Act "shall not be subject to question in, or review by, any court."
The amendment will be moved by Yatta MP Charles Kilonzo on behalf of the Constitutional Implementation Oversight Committee.
The MPs also want to fixing December 31, 2013 as the last date by which all judges and magistrates should have been vetted. The Act presently provides that the vetting should be concluded not later than February 28, 2013.
However the MPs will set March 28, 2013 as the date by which the Vetting Board should finish all its work.
Another amendment will empower the board to co-opt members of the Judicial Service Commission to vet magistrates.
The board chairman will be empowered to constitute three or more panels to work concurrently in the vetting of judges or magistrates. The Act currently says the chair can o constitute a maximum of three panels.
Justices Erastus Githinji, Wanjiru Karanja and David Maraga extended orders barring President Kibaki from de-gazetting the judges until the appeals have been concluded.
The court directed that the appeals to be fast tracked and heard on priority basis. Last month, the High Court stopped President Mwai Kibaki from de-gazetting judges Omolo, Bosire,Nyamu and Gacheche.
The judges had filed a petition at the High Court claiming that the vetting board's decision to sack them was a violation of their rights.
Justices Jonathan Havelock, Pauline Nyamweya, Alfred Mabeya, Joseph Mutava and Eric Ogolla agreed and ruled that the judges might suffer irreparable damage if they were de-gazetted before their appeals are heard.
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 protested and threatened to mobilize all the lawyers to boycott court proceedings presided over by the axed judges.
LSK chairman Eric Mutua said that they would convene an extra ordinary general meeting on December 8 to discuss their options.