IMAGE: By K.Gituma via Wikimedia Commons
On 5 November 2014, the Supreme Court of Kenya (Nairobi) handed down a judgment in Judges & Magistrates Vetting Board v Centre for Human Rights & Democracy. The case was on appeal from the Court of Appeal of Kenya in Nairobi (18th October, 2013).
The judgment is superbly written and exhaustively researched. It provides a bird’s eye view of ouster clauses in jurisdictions around the world.
KIAGE, J.A., who wrote for the plurality of Court of Appeal in 2013, characterised the dispute in this memorable paragraph:
‘This appeal and the litigation that preceded it brings into sharp relief the paradox of judicial reform and the clash of two competing visions of what it truly entails. It pits on opposing sides parties who have made great contributions to the legal and judicial mosaic of this country through some of the most turbulent times the nation has known. Both sides of this veritable jurisprudential Armageddon are convinced of the justice of their cause, each espousing their positions as epitomizing legal and societal desiderata. At the centre of dispute, on which we must pronounce, is the question whether in their quest for a brand new Judiciary birthed by the new Constitution, the people of Kenya intended that what measures would be designed in their name were completely and finally immunized from judicial inquiry.’
Less dramatically, the proceedings were commenced in the High Court [Nairobi Judicial Review Application No. 295 of 2012, 20 July 2012] by way of Petition filed by Judges of the High Court and the Court of Appeal. These Judges held office when the (new) Constitution of Kenya came into force in August 2010.
The Judges sought to review determinations of the Judges and Magistrates Board (the Board), which had determined that they are unsuitable to continue to serve as Judges under the new constitutional dispensation.
Before the High Court could review the determinations, the Law Society of Kenya raised a preliminary objection to the jurisdiction of High Court to review determinations by the Board. The Law Society contended that the section 23(2) of the Sixth Schedule to the Constitution and section 22(4) of the Vetting of the Judges and Magistrates Act oust the jurisdiction of the High Court to review the decision of the Board.
The High Court concluded that:
- The High Court shall not stop the process of vetting of judges and magistrates pursuant to the Vetting of Judges and Magistrates Act, 2011, save to the extent determined as merited in individual cases.
- The High Court shall have jurisdiction to intervene and review the process and decisions of the Vetting Board to the extent that the exercise of the Board’s mandate is shown to have exceeded its constitutional and statutory mandate under the Constitution and the Vetting Act.
- The High Court shall have jurisdiction to consider and adjudicate upon alleged breaches of fundamental rights and freedoms arising from the exercise of the Vetting Board’s mandate under the Constitution and under the Act.
- The High Court shall have jurisdiction to consider matters relating to extension of time of the Vetting Board effected pursuant to Article 259(9) of the Constitution.
- The High Court shall have jurisdiction to issue, review, uphold or vacate conservatory orders in connection with the vetting process.
- The High Court shall have jurisdiction to determine any questions ancillary to or consequential upon the vetting process.
The Supreme Court reduced the issues as follows:
- whether Section 23(2) of the Sixth Schedule to the Constitution and Section 22(4) of the Vetting of the Judges and Magistrates Act oust the jurisdiction of the High Court to review the decision of the Judges and Magistrates Board (JMVB); and
- whether the learned Judges of the Appellate Court erred in law, regarding the supervisory jurisdiction conferred upon the High Court under Article 165 of the Constitution, over the JMVB.
The Supreme Court found that, by the terms of the Constitution itself, ‘the High Court’s general supervisory powers over quasi-judicial agencies, and its mandate in the safeguarding of the fundamental rights and freedoms of the Constitution, by no means qualify the ouster clause which reserves to the Judges and Magistrates Vetting Board the exclusive mandate of determining the suitability of a Judge or Magistrate in service as at the date of promulgation of the Constitution, to continue in service.’ [para 200]
The basis of the ouster clause in question is ‘in the history attending the Constitution; and in the requirement of the Constitution for essential transitional arrangements; and in the express terms of the Constitution, by virtue of which the Vetting Board was established to determine the suitability of certain judicial officers, for the purposes of the values and principles declared in the Constitution itself.’ [para 201]
Finally, the Court clarified that in the terms of Section 23(2) of the Sixth Schedule to the Constitution, none of the Superior Courts has the jurisdiction to review the process or outcome attendant upon the operation of the Judges and Magistrates Vetting Board by virtue of the Constitution, and the Vetting of Judges and Magistrates Act. [para 203]
SOURCES:
High Court Petition, 2012 (link)
Court of Appeal, 2013 (link)
Supreme Court, 2014 (link)
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