“Tainted” judicial history remembered in new Kenya judgement

22 February 2019 · Carmel Rickard

WITH a reminder of what has at times been the unsavoury past of Kenya’s judiciary, the constitutional court has declined to intervene in the dismissal of a number of magistrates who served during the pre-constitutional era. As Carmel Rickard explains, the Kenyan courts are barred by an ouster clause from considering such dismissals. In this case the court deferred to the provision, at the same time spelling out the ouster’s limits and ensuring that in the case before it those limits were not transgressed.

THE timing of this judgment is particularly significant. It comes as tension builds between Kenya’s judiciary and other arms of government over judges’ powers to consider the meaning and application of statutes and to act when there are breaches of the constitution. Just a few days ago, for example, some MPs said judges should stop their “constant meddling” in the affairs of the legislature.

It is a claim heard in other African jurisdictions as well, and the courts sometimes appear to respond by way of an even more detailed than usual explanation of the source of their power and duty to interpret the law in the light of the constitution. This is just such a case, in that it contains a minute examination of how the judges approach their work.

Ironically, however, in this case the court upholds its own exclusion from considering certain matters.

The judges were considering a case brought by a number of magistrates, unhappy because they were sacked by a special “vetting board” that was established as part of the mechanism inaugurating Kenya’s 2010 constitution.

Their complaint was heard by five judges of the constitutional division of the high court, and their judgment begins with a sober reminder of how the judiciary was seen in the pre-constitutional era. Viewed as under the control of the executive, it was also widely thought to be “embroiled in impunity, corruption, bias” and not able to give impartial decisions. As the former chief justice, Willy Mutunga, put it: “it was an institution so frail in its structures, so thin in its 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.”

The new constitution was built on a completely different idea of the role of the judiciary, on a new bill of rights and a new system of government. To solve the problem of the judiciary and its poor record, however, a vetting board was set up, whose members were to review the behaviour of the judiciary and decide who was fit to continue in service. The rest were to be dismissed.

One, for example, said the process was “a witch-hunt, … premised on grounds that he had a lot of unexplained cash deposits”. Replying on behalf of the vetting board, its CEO commented on the allegations by the individual magistrates who were before the court, and in this particular case, he said that the board found the magistrate’s explanation for the “numerous cash deposits” into his account by “different people in different towns” just “incredible”.The courts’ jurisdiction to review the board’s decisions in this regard was specifically excluded. While the supreme court has upheld the constitutionality of these provisions, its decisions concerned judges only. In the latest case a group of magistrates argued that the ouster clause did not apply to the magistracy and they urged the court to find that it could go behind the ouster provision and consider their dismissal.

Courts usually view with grave concern any ouster clauses specifically preventing them from considering matters. But the ouster around Kenya’s vetting board seems to be rather different. The supreme court has already found it valid, as a “transitional arrangement” sanctioned by the country’s people, to ensure their confidence in the judiciary under the new constitution. In this latest case the constitutional judges said that the ouster clause extended to magistrates as well: the courts cannot consider whether the vetting board’s decisions to dismiss magistrates were correct.

But the court made it clear that if the vetting board were to exceed its authority – by considering matters outside its terms of reference for example – the court would be able to intervene. None of the cases brought by the magistrates in this case, however, were outside the board’s mandate and the court could thus not intervene.

The judgment is interesting for a number of reasons, beyond its reminder of Kenya’s difficult judicial history. Its explanation of the source of judicial power and how it arrives at decisions via linguistic analysis, is important. For a bench that might be wrestling with an ouster clause this decision, with its references to earlier judgments on the matter, will be required reading, particularly as the court stresses the limits it perceives on this controversial provision.

Two other issues are worth noting. There’s an important section on costs in the case, as the judges follow the line of reasoning that holds costs should not become a barrier to court access. Their decision not to make a costs award, coming so soon after a decision from Uganda on this topic, along with the extensive references on this subject in the footnotes, shows this is a live issue in African jurisdictions, with courts becoming increasingly sensitive to the role that legal costs may play in constitutional and public interest litigation.

Finally, there’s a sting in the tail. Though the judges found the judiciary bound by the ouster clause, they felt this was no reason not to comment on the efficacy and fairness of the vetting board process. It would have been better if Parliament had established an appellate mechanism allowing “a totally different body” to consider challenges to the board’s decisions, they said. This would have “insulated the process from perceptions of bias”.

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In this article:
The judgment discussed in this article - Bernard James Ndeda & 6 others v Magistrates and Judges Vetting Board & 2 others [2018] eKLR Petition 230, 236,262, 259, 270, 272 & 323 of 2016 (Consolidated) (Kenya)
Judges & Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others [2014] eKLR Petition Nos 13 A, 14 &15; of 2013 (Consolidated)
Saverino Twinobusingye vs Attorney General (Constitutional Petition No. 47 of 2011) [2012] UGCC 1 (20 February 2012); (Uganda)

Carmel Rickard

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