What you need to know:
- Mutunga accused of appointing officer who has not been vetted to hear case challenging the vetting process
Lawyers on Thursday accused Chief Justice Willy Mutunga of appointing a judge to handle a case on vetting yet the judicial officer had not undergone the process.
They also said that a ruling which stopped the vetting of judges and magistrates was “out of order” because the bench that handled the case included Mr Justice Mohammed Warsame, who will be scrutinised by the Judges and Magistrates Vetting Board on October 11.
“The Chief Justice, who has the right to constitute a judicial panel to deal with the vetting cases, chose to appoint a judge who is subject to vetting contrary to his previous practice in these cases,” said LSK chairman Eric Mutua at a luncheon in Nairobi on Thursday.
“We feel the decision is not in order and there seems to be a conflict of interest because ordinarily, he (Warsame) should have recused himself from the case,” the chairman added.
On Tuesday, a three-judge bench ruled to stop all matters or proceedings before the vetting board for 14 days or until the court issued further orders on the same.
Judges Warsame and George Odunga agreed to stop vetting but Mr Justice George Kimondo dissented citing a previous case that had sought to stop vetting last year.
The case had been filed by the Centre for Human Rights and Democracy and two other people. Justice Kimondo was part of the team that presided over last year’s case in which Mr Dennis Mongare sued the Attorney General seeking to stop the vetting of judges.
Lawyers argued that the vetting had been shielded from meddling by courts through Section 23(2) of the Sixth Schedule because it sought to scrutinise the same judicial officers handling the cases.
“Any judicial officer sitting today should not entertain matters on vetting,” said Dr Ekuro Aukot, a former member of the Committee of Experts that drafted the Constitution.
Justice and Constitutional Affairs minister Eugene Wamalwa said the stoppage would interfere with the calendar of reforming the Judiciary by February.
“I totally disagree with the Judiciary’s attempts to give itself unconstitutional powers in vetting,” he told LSK members in Nairobi.
Last week, LSK accused Dr Mutunga of trying to influence the board’s decision by informing them that Mr Justice Mohammed Ibrahim had completed his pending cases, which was the initial reason the board found him unfit to hold office.
But the CJ stated: “Never have I, nor will I, communicate to the authorities dealing with the vetting of judicial officers seeking to influence the outcome of their processes.” This was in an opinion piece he wrote in one of the dailies.