Reprieve for sacked magistrates who failed vetting
A vetting board had in 2016 found Michael Kizito, Wilson Kaberia, Timothy Okello and James Ndeda unsuitable to continue serving as magistrates.
Four magistrates sacked six years ago after failing a vetting process have received a reprieve after the Court of Appeal ordered a fresh hearing of their case against the Judges and Magistrates vetting board.
The board had in 2016 found Michael Kizito, Wilson Kaberia, Timothy Okello and James Ndeda unsuitable to continue serving as magistrates in the Judiciary.
They were found unsuitable over various respective disciplinary issues such as allegations of poor judgment writing skills, being partisan and using their position in the Judiciary to enrich themselves.
Since then, they have been fighting the board's decision on several grounds, among them that the process was conducted in a manner that violated their Constitutional right to a fair trial. They also rejected the board's decision on grounds that their right to be presumed innocent was violated.
In 2016, their applications to the Board to review the decisions were all dismissed, prompting them to escalate the dispute to court.
However, a five-judge bench of the High Court dealt them a blow after finding that the operating law, section 23(2) of the Sixth Schedule to the Constitution, ousted courts' power to examine decisions rendered by the vetting board on suitability of judges and magistrates.
The bench comprising Justices Jesie Lessit (now appeals judge), James Wakiaga, Grace Ngenye, John Mativo and John Onyiego based its finding on a decision rendered earlier by the Supreme Court.
The Apex Court had stated that "the High Court lacks power to adjudicate upon the suitability of a Judge or a magistrate to continue in service; and the responsibility for such a determination, during the period of transition, was constitutionally vested in the Judges and Magistrates Vetting Board".
The contestation of the four magistrates is that since the word "magistrate" does not appear in the said law, then the High Court is not deterred from hearing their case. They argue that the law, Section 23 (2) of the Sixth Schedule to the Constitution, does not apply to magistrates but to judges only.
In their view, the provision only relates to judges, hence it only ousts the courts' power to review the Board's decisions relating to judges but not magistrates.
The court of appeal has concurred with them and faulted the High Court bench for failing to consider the petitions on merit.
According to the court of appeals, the omission of the word 'magistrate' in the law was not an accident.
"Rights donated in law should not be taken away and should be protected by courts. Ouster clauses should not be imported into legal provisions as they had a tendency to visit injustice against the people. The rights reserved for magistrates under section 23(2) of the Sixth Schedule to the Constitution should be protected," Justice Sankale Ole Kantai said.
Another judge in the bench, Patrick Kiage, said the law meant that all judges and magistrates were to be vetted, but only judges were excluded from questioning a consequential removal or a process leading to such removal.
"It was difficult to believe that the drafters of the Constitution intended to include magistrates in the ouster clause but failed to do so by sheer inadvertence or inattention," said Justice Kiage.
However, Justice Hannah Okwengu dissented and held that High Court arrived at the correct conclusion in determining that they had no jurisdiction to review the determination of the Board in relation to the suitability of judges and magistrates.
She added that the decision of the Supreme Court settled the issue, and the High Court correctly complied with article 163(7) of the Constitution that obligated all courts to follow binding precedent set by the Supreme Court.
The vetting of judges amd magistrates happened because prior to the promulgation of the 2010 Constitution, the Judiciary was viewed as a state organ embroiled in impunity, corruption, bias and under the control of the executive and would therefore not give an objective or impartial determination.
In the words of then Chief Justice Dr Willy Mutunga, "it is was an institution so frail in its structures, so thin in resources, so low on its confidence, so deficient in its integrity, so weak in public support that to have expected it to deliver justice was to be wildly optimistic".