1/10/2012

PRESS STATEMENT THE JUDGES AND MAGISTRATES VETTING BOARD

PRESS STATEMENT

1. On Friday the 28thSeptember 2012, I sent the following letter to the Honourable Chief Justice, Dr. Willy Mutunga. 2. Dear Chief Justice, On behalf of the Judges and Magistrates Vetting Board, I write to you in your capacity as Head of the Judiciary with a view to avoiding a looming institutional and constitutional crisis. As you are aware, the Board has established a clear timetable* to enable it to complete its constitutional and statutory mandate in respect of all judges by the end of October. We have now been informed, however, a court Order issued on 25th September 2012, stated that all matters or proceedings of the Board were stayed for a period of fourteen days until 9th October 2012, with the indication that further orders of stay might follow, with an indeterminate time frame as to how long the orders could be in place. This stands in conflict with the urgent need for the process to be speeded up. The judges concerned, the legal profession, the public and parliament have all expressed eagerness to see the process completed as soon as possible. Honourable Chief Justice, you yourselfhave gone on record to this effect. 1

1/10/2012

The Board has been inundated with requests from judges for whom interviews have been scheduled, to continue with their interviews. They point out to us that a sword of Damocles is hanging over them, distracting them from their work. They are insistent that we proceed with their matters, as they are not parties to the court case and never sought a stay order. The public interest could not be greater. There is urgent need for a judiciary inspiring public confidence to be in place well before the General Elections set for March 2013.The Board need not overemphasize that the aftermath of the 2007 General Election, was largely attributable to the failure to resort to courts due to lack of public confidence. Agenda IV also captured transformation of the judiciary as a key element for moving forward. This includes the vetting process. The very purpose of this process has been to restore public confidence in the judiciary. Such confidence cannot be restored if the judiciary, or its members, are seen: i) To be disregarding the clear terms of the Constitution, including provisions that are vital to the reform of the judiciary itself; ii) As violating one of its own fundamental principles, namely sitting in judgment on itself. This becomes particularly acute when judges who themselves face vetting, sit in judgment over processes affecting their own vetting. But theframers of the Constitution,and Kenyans in exercise of their sovereign and inalienable right to determine the form of governance of our country intended to exclude all judges from adjudicating on matters relating to the vetting process. iii) To be utilizing the very resort to technicalities to establish immunity from due legal process that led to drastic decline of public confidence in the judiciary in the first place. The Board now finds itself in the unfortunate situation of being faced with an Order that purports to prevent it from continuing with its work, while the judges most directly affected want us to proceed. The Constitution states clearly in Section 23(2) of the Sixth Schedule that; 2

1/10/2012 a removal, or a process leading to the removal of a judge from office by virtue of the operation of legislation contemplated under subsection 1 shall not be subject to question in , or review by, any court In keeping with this clear constitutional provision, the Board states that it does not recognize the jurisdiction of the courts to question or review its processes or decisions. In conclusion, the Board wishes to state that it has high regard for your office and respect for the leadership which you have been giving. We believe that constitutional objectives can best be achieved if the Board and the judiciary work in harmony to fulfill their respective mandates under the Constitution. We accordingly propose that a meeting between yourself and myself be arranged before we issue any public statement on the matter. 3. I attached to the letter a schedule giving a timetable which would enable the Board to complete all its interviews with judges before the end of October, and to ensure that the last Determinations would be finalized shortly thereafter. The timetable is attached to this statement. 4. Copies of the letter were delivered to the Attorney-General of the Republic of Kenya; Minister for Justice, National Cohesion and Constitutional Affairs, Chair, Commission on the Implementation of the Constitution, Chair, Commission on the Administration of Justice, Chair, Constitutional Implementation Oversight Committee of Parliament and Chair, Legal Affairs Committee. 5. I met with the Honourable Chief Justice this morning. He indicated that he understood the concerns of the Board, and reaffirmed his frequently stated position that he was anxious to see the vetting process completed as soon as possible. 6. Section 23(2) of the Sixth Schedule to the Constitution has expressly ousted the Courts jurisdiction as a way of insulating the vetting process against manipulation by the judiciary. 3

1/10/2012

7. The Board wishes to emphasize that it does not accept that the judiciary has jurisdiction to sit in judgment over its work. We have been given a mandate by the people of Kenya, through the Constitution, to see the vetting process through to speedy conclusion. The clear provisions of the Constitution were designed to prevent precisely the situation which has arisen, namely, that members of the judiciary would seek to obstruct the very process in terms of which they were themselves to be vetted. 8. In the present matter, a judge who is himself due to be interviewed by the Board on the 16 th of October 2012, issued a stay which purported to paralyze all operations of the Board for 14 days, severely interfering with the Boards work. This order was issued despite a request that the judge recuse himself and that the Court first determine the issue of whether it has jurisdiction to hear the matter at all. The order purporting to stay the work of the Board was accordinglyissued without argument being heard from counsels who were present in court, and despite the manifest conflict of interest of one of the judges in the 2: 1 majority. In the Boards, view, the stay order is null and void. 9. Several judges who have prepared diligently for their interviews have called at or telephoned to urge the Board to keep to the Schedule. That is what they want. That is what the public demands. 10. Judges cannot be true to their oath to uphold the Constitutionbut purport to blow the whistle on a process commanded by the Constitution. They cannot be players and referees at the same time. 11. The vetting process is not hostile to the judiciary. On the contrary, it is designed to help preserve a judiciary that the public believes will fearlessly uphold the rights of all in society, particularly those whose rights have most been disregarded in the past. It is to remove the taint of being seen as a judiciary that is corrupt, unduly favorable to those in power, obsessed with technicalities, incapable of dealing with cases with requisite promptness and generally unable or unwilling to administer justice in an appropriate manner. And it is to enable the many conscientious judges on the Bench to hold their heads high in the knowledge that the public trusts them and believes in their capacity to do justice. It is thus in the interest of the 4

1/10/2012 judiciary as a whole, and of each member, that a fresh start be made so that the public is persuaded that the traumas undergone by litigants in the past will not continue into the future. 12. The Board has interviewed all the judges of the Court of Appeal and more than half of the judges of the High Court. Sixteen more interviews remain to be completed. We had anticipated that this will be completed by 25th October 2012; however, this schedule will be disturbed by the recent decision by the court.However, the Board wishes to state that it will not be deterred from completing its work and is considering all possible options as to how to do so expeditiously and complete its mandate.