What you need to know:
- There is legitimate public interest that the process must continue, says court
An order stopping the vetting of judges and magistrates has been lifted, setting the stage for a clean-up in the Judiciary.
Court of Appeal judges Emmanuel O’Kubassu, Alnashir Visram and David Maraga ruled that the issue is of great public interest given that Kenyans resoundingly voted for the vetting process by approving the Constitution at the referendum. (READ: Push to lift order on judges’ vetting)
“There is legitimate public expectation that the vetting process must continue and we take judicial notice that the Vetting Board is ready to begin work with a set timeline. Considerable public funds have been invested into the process; we simply cannot halt its work,” ruled the judges.
The appeal was lodged by Mr Dennis Mang’are after losing a similar application in the High Court. He obtained temporary injunctions, which put a halt to the process three days before the vetting of appellate judges began.
The chairman of the Judges and Magistrates Vetting Board, Mr Sharad Rao, welcomed the decision by the court.
“The board is very happy that the orders have been lifted,” said Mr Rao.
He said the board would start its work on Thursday. (READ: Let the vetting begin)
The High Court had ruled that even though the vetting process would cause anxiety among judicial officers, the outcome would not only be beneficial to the country but also to the judges and magistrates.
Mr Mang’are appealed against the ruling, claiming that the High Court misinterpreted the Constitution in allowing the vetting to proceed.
He argued that the entire vetting process was unconstitutional because it contradicted the substantive provisions of the Constitution relating to the independence of the Judiciary and sought a Court of Appeal injunction to the process.
The Magistrates and Judges Association supported the application, claiming that they would suffer prejudice and some of them risked losing their jobs.
The appellate judges, however, dismissed the application, saying that even if the prayer was for a stay for execution of the process, they would have rejected it.
They ruled that there is great public interest in the implementation of the Constitution that must override the private right or interest to halt something which is likely to prejudice the administration of justice.
“We must think and look outside the box. The complaints are with some parts of the Vetting Act which some believe is unlawful and want the process to be fair but that cannot be accomplished by halting the vetting process,” said the judges.
They upheld arguments by the Vetting Board that even though the judges and magistrates had no right of appeal, the Vetting Act had provided for a review of the board’s decision before a tribunal.