A dispute between the Judicial Service Commission (JSC) and three judges who were fired seven years ago after failing to account for vast sums of money in their bank accounts has now been taken to the Supreme Court.
In an appeal, the commission wants judges to overturn a Court of Appeals ruling that ordered a new hearing of the trio against the Judges and Magistrates Vetting Board, who found them incapacitated.
She wants the Supreme Court to determine whether Section 23(2) of the Sixth Schedule to the Constitution supersedes the High Court’s power to review decisions of the Board.
The Court of Appeal found that only the said Act closed the judges, but not the prosecutors, from contesting decisions of the board. In its Oct. 22 ruling last year, the Court of Appeal found that judges were not barred from challenging the board’s decision.
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In a judgment of 22 June 2018, the High Court found that the law prohibits both judges and prosecutors from going to court and that the panel’s decision cannot be challenged by any court.
< h2>Supreme Court
At the heart of the Supreme Court dispute is the true meaning and interpretation of Section 23(2) of Schedule Six, which prevents the courts from reviewing the Board’s decisions relating to impeachment of a judge, but does not specifically mention judges.
The Board had in 2016 found the three judges – Michael Kizito Oduor, Timothy Okello Odiwour and Bernard James Ndeda – unfit on various disciplinary grounds such as allegations of poor writing judgment, partisanship, and using their positions to enrich oneself.
They have challenged the committee’s decision on a number of grounds, including that the procedure conducted in a manner that violates their constitutional right to a fair trial. They also challenged the Chamber’s decision on the grounds that their right to be presumed innocent had been violated. The panel was chaired by Mr. Sharad Rao, a retired prosecutor.
In 2016, all of the judges’ requests for the panel to review the decisions were dismissed, prompting them to escalate the dispute in court.
However, a five-judge chamber of the High Court dealt them a slap after finding that Section 23 § 2 superseded the power of the courts to grant chamber decisions on the suitability of judges and prosecutors check. Offended by the verdict, they appealed to the Court of Appeal, which overturned the High Court’s findings.
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The appellate judges, in a majority decision, stated that the Operating Act only prohibited the courts from hearing requests by judges against the Chamber. The court said the omission of the word ‘magistrate’ from the law was not an accident, so the High Court was undeterred from hearing the magistrate’s case against the board. The Court of Appeals accused the Supreme Court of failing to review the petitions on the merits.
Justices Patrick Kiage and Sankale Ole Kantai said the law meant all judges and prosecutors had to be reviewed, but only Judges are barred from questioning any subsequent removal or any process leading to such removal.
However, Judge Hannah Okwengu disagreed and ruled that the High Court reached the correct conclusion by finding that it had no jurisdiction to oversee the Board’s determination as to the suitability of judges and prosecutors.
While the Supreme Court allowed the JSC’s motion, it found that the Appeal is available.
“The issues raised therefore affect the jurisdiction of the High Court to hear the applications. We believe this matter is relevant and appropriate for this court to decide,” said Deputy Chief Justice Philomena Mwilu.
The other justices are Justices Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko. They also stayed the judgment of the Court of Appeals pending a hearing and determination of the matter.