RULING OF THE COURT
, A.K. MURGOR, JA(DISSENTING)
The facts and proceedings relating to the application are as set out in the lead judgment of Kiage JA, and as such I do not deem it necessary to enumerate the entire narrative.
Introduction
At the core of this application is the issue whether the High Court has jurisdiction to review the decisions of the Vetting of Judges and Magistrates Board (“the Vetting Board”), despite the existence of the ouster clause in Section 23 (2)of the Sixth Schedule of the Constitution.
In order for this issue to be determined, it is important that the surrounding circumstances be considered in context.
Background and Historical context
Following almost two decades of political agitation for a new constitution, the people of Kenya finally voted for a new constitution through a national referendum held on 4th August 2010.In accordance with Article 263, the Constitution of Kenya 2010 was promulgated, and came into force on 27th August 2010, and was to usher in a new socio –economic political and cultural order, firmly derived from, and rooted in the people of Kenya. A Constitution that was not only confined to limited government, or the embodiment of national values, ethos and identity, but also socio-political, economic and cultural engineering. (SeeYashGhai- Constitutional asymmetries; Communal representation, federalism and Cultural Autonomy).
During the several attempts at creating a new constitutional order, one constant wasthe Judiciary coming under repeated and severe criticism for actual or perceived failure to uphold the rule of law, arising from delay in the dispensation of justice, rampant corruption, incompetence, and lack of independence, which greatly undermined the confidence of the Kenyan people in the judiciary, and the judicial process. The Final Report of the Task Force on Judicial Reforms as presented to the Government of Kenya on 1st July 2010 observed that the process of appointing judicial officers had hitherto been devoid of transparency, giving rise to questions of suitability of some judicial officers, ab initio, and hence severely compromising the image of the judiciary and its processes.
Article 262 provides for “The Transitional and Consequential provisions”, comprising Section 23(2) of the Sixth Schedule in respect of the vetting of serving judicial officers. The vetting of judicial officers was one of the transitional requirements included as an integral and fundamental part of the Constitution, to transit the then existing judiciary, to a restored and reformed judiciary that would operate in consonance with, and within the framework and spirit of the new constitution, dispensing justice without fear or favour.
In order to give effect to Section 23, and in accordance with the requirements of Article 262 of the Constitution, Parliament enacted the Vetting of Judges and Magistrates Act, 2011 (Act No. 2 of 2011)(“the Vetting Act”) which came into force on 22nd March 2011, and established a framework for the vetting of judges and magistrates. Section 6 of the Act established an independent Board to be known as the Vetting of Judges and Magistrates Board. Section 13 provided for the functions of the Board which were, inter alia, “To vet judges and magistrates in accordance with the provisions of the Constitution and this Act”.
Section 23 of the Sixth Schedule, of the Constitution provided that,
“23(1) Within one year after the effective date Parliament shall enact legislation which shall operate despite Articles 160, 167, 168, establishing a mechanism and procedure for vetting within a timeline to be determined by the legislature, the suitability of Judges and Magistrates who were in office on the effective date to continue to serve in accordance with the values and principles set out in Article 10 and 159.
23(2). A removal or process leading to the removal of a judge from office by virtue of the operation of legislation contemplated under subsection (1) shall not be subject to question, in, or review by any court.”(emphasis mine)
In determining the issues that were before it, the High Court found that, it had jurisdiction to exercise the constitutional mandate conferred upon it by the people of Kenya under Article 165, and further that the Section 23 (2) was incapable of eliminating the Court’s jurisdiction in respect of breaches of fundamental rights. The High Court considered the Anisminic case to be, “...the definitive authority in relation to the former writ of certiorari and the Administrative jurisdiction this court by way of review”.
Issues for determination
I have considered the appellant’s, as well as the respondent’s and the interested parties’ arguments as set out in the pleadings, and the submissions from learned counsel for all the parties. I have discerned the following to be the issues for determination:
What is the interpretation and effect of Section 23 of the Sixth Schedule?
Is the ratio decidendi in Anisminic v. Foreign Compensation Commission applicable to the vetting process?
Does the High Court have supervisory jurisdiction over the Vetting Board?
What is the effect of the Transitional and Consequential provisions in relation to the Constitution?
Does the High Court have the jurisdiction to review decisions of the Vetting Board as established under the Vetting of Judges and Magistrates Act (Act No. 2 of 2011)?
I begin with the question of interpretation of the Constitution, as this must be examined and understood before the issues herein can be analysed;
Interpretation and effect of Section 23 of the Sixth Schedule.
In interpreting the Constitution 2010, Section 259 provides that,
259. (1) This Constitution shall be interpreted in a manner that-
promotes its purpose, values and principles;
advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
Permits the development of the law and
Contributes to good governance.
The Constitution is the supreme law of the land, and sets the standards against which the legality of all national laws are tested. In construing or interpreting the provisions of the Constitution, the courts are obligated to promote its purpose, values and principles, rule of law, Bill of Rights, development of the law and good governance.
In interpreting a Constitution, the principles to be applied were stated by in Republic v. Mann (1969) EA 357,as follows:
“We do not deny that in certain contexts a liberal interpretation of the constitution may be called for, but in one cardinal respect we are satisfied that a constitution is to be construed in the same way as any other legislative enactment, and that is where the words used are precise and un-ambiguous they are construed in their ordinary and natural sense. It is only where there is some in-precision or ambiguity in the language that any question arises whether a liberal or restricted interpretation should be put upon the words.”
In construing the Constitution, it is also essential that the intention, or the meaning behind the words is brought into focus. In the case of Direct United States Cable Co. v. The Anglo-American Telegraph Co. (1877) 2 A.C. 394 Lord Blackburn stated that;
“The tribunal that has to construe an Act or legislation or indeed any other document, has to determine the intention as expressed by the words used. And in order to understand these words it is natural to inquire what is the subject matter with respect to which they are used and the object in review.”
The Constitution comprises provisions that are of a general nature, and there are those that are concerned with specific aspects and for distinct purposes. In the latter case, due regard must be taken of the intention behind the specific provisions, and the purposes for their inclusion. The interpretation of the provisions that are specific, also requires that the meaning should be construed strictly from the words as set out in the Constitution.
Section 23(2) provides that,
23(2). A removal or process leading to the removal of a judge from office by virtue of the operation of legislation ...shall not be subject to question, in, or review by any court. (emphasis mine)
When the plain and ordinary meaning test is applied to Section 23(2), the meaning and effect of the words is unequivocal that; the Court’s jurisdiction to review decisions or process of the Vetting Board is emphatically ousted. From the clear intention and purport, Section 23(1),provided that the vetting of judges and magistrates, as recommended by the Committee of Experts (“the COE”)was to be carried out by a body distinct from the courts. It was the intention that the process would be conducted within a limited time frame, and that the vetting of each judge would be determined with finality, hence the need to exclude the courts from reviewing the Vetting Board’s decisions. It was not the intention of the framers and the people of Kenya that, the express provisions of Section 23(2) would be blatantly disregarded, so as to allow the court jurisdiction over the decisions of the Vetting Board, or its process.
Were the legal principles in Anisminic v. Foreign Compensation Commission (1969) 2AC 157applicable to the vetting process?
Mr. Kanjama, learned counsel for the appellant, argued that the High Court erred in applying the legal principles advanced in the Anisminic case, which in his view were was specifically relevant to, a statutory ouster clause in a UK statute. Learned Counsel was of the view that the decisions from the UK, West Indies, Indian and Pakistan were not applicable to the Kenyan context, and should be disregarded. Mr. Kanjama entreated us to distinguish this case from the decisions in other jurisdictions. Mr. Gicheru, learned counsel for the 3rd respondent, submitted that, in most jurisdictions the courts have disregarded ouster clauses, particularly where they affect the fundamental rights and the rules of natural justice. Dr. Khaminwa, learned counsel for the 1st respondent, considered, the decisions from the common wealth and other jurisdictions to be good law and applicable to this case.
In their judgment, the learned judges, critically analysed the legal principles on the ouster clauses derived from the various jurisdictions, and enumerated general principles that a Kenyan Court should consider in interpreting an ouster clause in order to determine the extent of the court’s interference as follows:
- “Statutory provisions tending to oust the jurisdiction of the Court should be construed strictly and narrowly. It would be a travesty of justice if ouster clauses are applied at face value as tribunals, bodies or persons in position conferred with power may run amok, act with impunity or abuse that power to the detriment of our people;
- The court will not normally intervene where authority under challenge acts within its permitted field, even when the emerging decisions are wrong;
- The court will not normally intervene where authority under challenge acts within its permitted field, even when the emerging decisions are wrong;
- In spite of a finality clause, it is open to the court to examine whether the action of the authority under challenge is in exercise of its jurisdiction or contravenes a mandatory provision of the law conferring on the authority the power to take such action;
- Breach of the principles of natural justice, including the right to a fair hearing, opens up the decision of the tribunal to review even if these is an ouster clause;
- Breach of fundamental rights and freedoms enshrined in the Constitution including the right to protection of the law and respect for human rights will entitle a court to intervene, notwithstanding the existence of finality or ouster;
- An ouster clause may ultimately be usurped if there is strong and compelling reason.”
Ouster clauses have been the subject of intense legal discourse, over the years. The debate evolved around the statutory ouster clause and if so, the circumstances and the extent to which the court can intervene to review the decisions of tribunals and bodies. Then there is the paradox that exists, where the ouster clause is a part of the constitution itself. Would the constitutional ouster be subjected to the same justifications as those specified for a statutory ouster clause? This is clear from the case of Anthony Leroy Austin v. the Attorney General of Barbados (No. 2161 of 2003)where Chandler J stated,
“There is much debate about the way in which Constitutional ouster clauses should be interpreted. It has long been thought that constitutional ouster clauses should be taken as they are and given a ‘face value’ approach since they are deemed to represent the clear intentions that certain questions should not be the subject of review by the courts.
Thus the approach is taken that ‘where the Constitution itself excludes such questions, the courts lose their jurisdiction to entertain these questions because they have no power to override the Constitution’. This is the view of Dr. Basu in his Commentary of the Constitution of India.
This approach is taken by several authorities. In Jones v. Solomon Civil Appeal No. 85 of 1986, a case from the Court of Appeal of Trinidad and Tobago, Sharma J.A. stated:
‘When the court is called upon to deal with the effect of an ouster clause contained in a Constitution,...it must so interpret the ouster clause that the supremacy of the constitution is preserved’.
The English decision from the House of Lords in the Anisminic case (supra)is the locus classicus on statutory ouster clauses. The Court there held that, despite the existence of an ouster clause in Section 4(4) of the Foreign Compensation Commissions Act 1950, the court’s jurisdiction would not be excluded, where the determination of the Tribunal was considered a nullity. In reaching this decision, three of the law Lords allowed the appeal, while two dissented.
Lord Reid in the Anisminic case stated thus,
“It is a well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly – meaning I think, that if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court”.
Lord Pearce in the same case stated thus,
“My lords, the courts have a general jurisdiction over the administration of justice in this country. From time to time Parliament sets up special tribunals to deal with special matters and gives them jurisdiction to decide these matters without any appeal to the courts considered that such a decision went too far in by providing an almost open door for interventions by the courts in many situations where the judges had previously been reluctant to tread”.
This decision was followed in R v. Secretary of State for the Home Department ex p Fayed (1997) 1 All ER 228, but in limiting the decision of the House of Lords in the Anisminic case, the Court held that the clause did not oust the jurisdiction of the courts from reviewing the decision on procedural grounds.
West Indies case law has generally followed the decision in, the Anisminic case, which was based on a statutory ouster clause. There are authorities that seek to enforce the constitutional ouster provisions. In the case ofJones v. Solomon Civil Appeal No 85 of 1986, it was stated by the Court of Appeal of (Trinidad and Tobago) that,
When the Court is called upon to deal with the effect of an ouster clause contained in a Constitution....it must interpret the ouster clause so that the Supremacy of the Constitution is upheld.
In the case of Harrikison vsAtorney General of Trinidad& Tobago Civil Appeal No 59 of 175 Hyatali CJ stated:
“A court would be acting improperly if a perfectly clear ouster provision in the constitution of a country which is its supreme law is treated with little sympathy or scant respect, or is ignored without strong and compelling reasons”.
The Court, based its decision on the Anisminic case, and nevertheless went on to state that,
“Whether an ouster of jurisdiction clause of the Constitution, despite its unqualified language, is nevertheless subject to the same limited kind of implicit exceptions was held by the House of Lords on The Anisminic Limited v. Foreign Compensation Commission 1969 to apply to an ouster of jurisdiction clause in very similar terms contained in an Act of Parliament”.
It is interesting to observe that in the same case, Lord Diplock in the Judicial Committee of the Privy Council, left open for consideration the distinction between constitutional ouster clauses and statutory ouster clauses in stating thus,
“...there is considerable discussion of recent English cases dealing with "ouster of jurisdiction clauses" contained in Acts of Parliament. Section 102(4) does not form part of an Act of Parliament; it is part of the Constitution itself. Their Lordships do not think that the instant appeal provides an appropriate occasion for considering whether section 102(4) of the Constitution, despite its unqualified language, is nevertheless subject to the same limited kind of implicit exception as was held by the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147 to apply to an ouster of jurisdiction clause in very similar terms contained in an Act of Parliament. This question is best left to be decided in some future case if one should arise, in which the facts provide a concrete example of the kind of circumstances that were discussed in the judgments in the Anisminic case. The facts in the instant appeal do not. The appeal is dismissed with costs."
Likewise, in the Barbados cases of the Committee of the Privy Council in Endell Thomas v. Attorney General of Trinidad and Tobago [1982] AC 113 stated,
“Apart from being a fundamental right enshrined by the Constitution, the right to a fair hearing is one of the more far-reaching of the principles of natural justice. A breach of the principles of natural justice opens up the decision of the tribunal to review even if there is an ouster clause. The violation of a principle of natural justice amounts to an excess of jurisdiction.
The law is now settled that an ouster clause will not prevent the court from intervening in the case of an excess of jurisdiction. The case of [ANISMINIC] is authority on this point.”
In the same jurisdiction, an appeal to the Caribbean Court of Justice in the case of Attorney General and Others v. Joseph and another(2007) 4 LCR 199 the learned judges’ in declining to uphold the ouster clause stated thus,
That clause, in our view, provides no comfort to the Attorney General. Ever since the House of Lords decision in Anisminic Limited v. Foreign Compensation Commission 1969courts will make it clear that they will not be deterred by the presence of such ouster clauses from inquiring into whether a body has performed its functions in contravention of fundamental rights guaranteed by the Constitution, and in particular, the right to procedural fairness”.
In the Indian case of Kihoto Hollohan vsZachillhu and others 1992 SCR (1) 686 the Supreme Court of India heard a large number of petitions challenging the constitutionality of the Constitution (Fifty-Second Amendment) 1985, where the Tenth Schedule that was inserted into the Constitution of India contained amongst other things, an ouster clause seeking to impose a statutory finality clause on the decisions of Speaker or Chairman. In determining the question on whether the Courts’ jurisdiction could be ousted, the Court, stated thus,
“Paragraph 69(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the speakers/chairmen, is valid. But the concept of statutory finality embodied in paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 in so far as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and precocity, are concerned.”
In this case, the contention was an amendment to the Constitution, which the general populace in India found to be objectionable. This is easily distinguishable from the appeal before this court wherein, the ouster clause under consideration is an express provision within the Kenya Constitution, as enacted by the Kenyan people.
What emerges from the aforementioned UK and West Indies decisions, is that the principles in the Anisminic case, were applicable irrespective of whether the ouster clause in question was concerned with a statute, or in a Constitution, on the basis that where prejudice is suffered for failure to adhere to fundamental rights and freedoms, the courts would not hesitate to intervene. It will be borne in mind that, unlike other nations, the UK does not have a formal written constitution. English Constitutional Law defines this phenomenon as follows:
“[T]he British Constitution is largely unwritten and is derived from a number of formal and informal sources including statutory law, judge made law, constitutional conventions and the royal prerogative. A W Bradley and K D Ewing, Constitutional and Administrative Law (15th edition)”
In the Anisminic case, the House of Lords allowed the court jurisdiction, based on the interpretation of a provision to be found in an Act of Parliament, namely the Foreign Compensation Commission Act 1950 on grounds that the commission was acting ultra vires, and therefore its decision was void ab initio, and as such intervention by the courts could not be excluded by this provision. The Anisminic case was followed by a string of West Indies decisions which also applied the principles in the Anisminic case. However, these decisions must be considered in the light of their proper context. From a historical perspective, the West Indies, continue to prefer their appeals to the Judicial Committee of Privy Council hence, it is expected that based on the doctrine of precedence they were bound by the decision in the Anisminic case. In the Indian decisions, the proposed amendment to the Constitutional creating an ouster clause was never passed or enacted. I am convinced that, given the diverse historic and other unique circumstances in these jurisdictions, I find it difficult to accept that the ratio decidendi in the Anisminic case applies on all fours in the interpretation of Section 23(2) of the Kenya Constitution, and hold that the Anisminic case must be distinguished as such.
Does the High Court have supervisory jurisdiction over the Vetting Board?
Mr.Kanjama, submitted that, the Vetting Board established by an Act of Parliament was a constitutional and judicial body, that was independent and free from interference of any other body or entity; that having regard to the position of the Vetting Board relative to the High Court, the High Court could not arrogate itself jurisdiction, where it had been specifically excluded by the Constitution; that once the Vetting Board was established the jurisdiction of the High Court was ousted. Learned Counsel cited the cases of Mecol Limited v. Attorney General and 7 others (2006) eKLR, Kenya Airways Limited v. Kenya Pilots Association and Safaricom Limited v. Ocean View Beach Hotel and 2 others (2010) eKLR in urging that the status of Vetting Board was akin to the Industrial, Land and Environmental Courts, and could not be considered inferior to the High Court. Mr. Nderitu, learned counsel for the 4th respondent contended that the Constitution is not a statute but is the supreme law and required to be interpreted as such. It was the submission of Mr. Gichuru submitted that, the Vetting Board was a creature of statute, and not a creature of the Constitution, and therefore it was subject to the jurisdiction of the High Court, and that only the Court of Appeal and the Supreme Court are superior to the High Court. Mr. Katwa, learned counsel also for the 2nd respondent was categorical that Section23 (2) did not oust the powers of the High Court to supervise the Vetting Board.
At Article 1(3), Judicial authority is delegated to the Judiciary and independent tribunals, including the Vetting Board, to perform their functions in accordance with the Constitution, while Chapter 10 of the Constitution establishes the Judiciary and the legal system, with Articles 163, 164 and 165, establishing the judicial hierarchy comprising of the Supreme Court, the Court of Appeal and the High Court, each vested with its own jurisdiction, and scope of authority, designed to ensure that courts do not compete for supremacy.
Article 165(6) provides for the supervisory jurisdiction of the High Court, and powers of judicial review as follows,
“(6) The High Court has supervisory jurisdiction over subordinate courts and over any person, body or authority exercising judicial or quasi judicial function but not over a superior court.”
The Vetting Board is a body established by an act of Parliament, with constitutional authority prescribed by Section 23 of the Constitution. It is an independent judicial body, sui generis, and of unusual hierarchical status, arising from its origins in Section 23 of the Sixth Schedule of the Constitution. It is endowed with judicial or quasi- judicial functions, and constitutionally derived powers. The Vetting Board has a special and exclusive jurisdiction, to vet judges and magistrates in accordance with the provisions of the Constitution and this Act, which is akin to the Industrial, Land and Environmental Courts as established under the Constitution.
In arriving at how the courts’ jurisdiction should be interpreted, the Supreme Court adopted a restrictive approach, in the case of Samuel Kamau Macharia and another v. Kenya Commercial Bank and 2 others, [2012] eKLR the Supreme Court took the view that a court may not arrogate to itself jurisdiction through craft of interpretation stated thus,
“...A court’s jurisdiction flows from either the Constitution or Legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. ... It goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings...where the Constitution exhaustively provides for jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation...”
Indeed, there is no question that the High Court has supervisory jurisdiction over subordinate courts, tribunals and bodies, however, the scope of such jurisdiction cannot be held to be unlimited. This is because the parameters of the court’s jurisdiction is defined in the Constitution, legislation and in judge made law. Where a provision of the Constitution, or an Act of Parliament exists to limit or exclude the court’s jurisdiction, the court should very carefully examine the Constitution, or such written law to establish whether or not to confer upon itself jurisdiction. Where there is doubt, then, the court should be decline to confer upon itself jurisdiction. “[30] The Lillian ‘S’ case [Owners of Motor Vessels ‘Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR1].
In Republic v. Public Procurement Administrative Review Board and Another Ex Parte Selex Sistemi Integrati (2008) eKLR the Court stated thus,
“The reason for the above analyses is to emphasise that in constitutional matters even this court has limitations, and must confine itself to constitutional limits and delineation. The court does not have a blank cheque to fill, in the name of the exercise of raw power, or under the guise of principle of finality or hierarchy. The other limitation of the court’s jurisdiction, as regards fundamental rights is that all persons, authorities or organs of government are subject to the enforcement jurisdiction, and nothing can supersede these rights.”
I am of the considered view, that when the Vetting board is considered in comparison to the subordinate courts and tribunals and other bodies, its status, because of it constitutional genesis, is such as to exclude it from the supervisory authority of the High Court.
Effect of the Transitional and Consequential provisions in relation to the Constitution?
Mr. Kanjama submitted that with the existence of the transitional and consequential provisions, the substantive provisions of the Constitution were suspended to the extent that they were in competition with them; that Section 23(2), would take precedence notwithstanding Articles 160,167 and 168, as well as the fundamental rights and freedoms. Mr. Kanjama further submitted that the Vetting Act made adequate provision for the right to be heard, and the rules of natural justice. Mr. Njoroge learned counsel for the 4th and 5th respondents, submitted that these provisions were designated as part of the ongoing transition process, but this notwithstanding, the appointment process would not be impeded. In effect, the transitional clauses were to take effect before the substantive clauses of the Constitution, and as a consequence Article 165(6), and the fundamental principles were excluded from the ambits of the ouster clause. Dr. Khaminwa on the other hand submitted that, the fundamental rights and freedoms were central to the Constitution, and could not be disregarded, and further that an ouster clause in the Constitution, or a statue is not effective against the Bill of Rights and the rules of natural justice. Mr. Oduol learned counsel for the 10th and 11th Respondents and Mr. Mwenesi learned counsel for the 9th Respondent argued that there had been violations of the petitioners’ rights during the process, which should be open to the courts to review.
The “The Transitional and Consequential provisions”, are to be found in the Schedules of the Constitution, and are applicable by virtue of Article 262 of the Constitution which provides that they are deemed to be an integral part of the Constitution. The transitional clauses were enacted in the Schedules, for reasons that their usage was required for a particular period in time, as well as to avoid encumbering the Constitution with provisions that would cease to be of any consequence, once the Constitution was fully implemented. This was not so as to relegate the transitional provisions to a status inferior to the substantive provisions of the Constitution.
In Centre for Rights Education and Awareness (CREAW) and two others v. John Harun Mwau& 2 Others), this Court stated thus,
“...The functional construction rule referred to requires that the enactments must be construed in a manner which gives each component part of the Act containing it according to its legislative function as such a component. In my view, the same construction applies to a schedule to the constitution. Furthermore, the schedules including the Sixth Schedule to the current Constitution were contained in the Proposed Constitution of Kenya which was approved in a national referendum...”
Section 262, does not specify in a situation of conflict, which of the provisions would prevail. However in the case of South Dakota v. North Carolina (192 US 268 (1940) L ED, the court stated,
“It is an elementary rule of constitutional construction is that no one provision of the Constitution is to be segregated from all the others to be considered alone, but all provisions bearing on a particular subject are to be brought into view and to be interpreted as to effectuate the general purpose of the instrument”.
In seeking to examine and construe the effect of Section 23(1), it is observed that, Article 160 deals with the independence of the judiciary, Article 167, with the tenure of the office of the Chief Justice, while Article 168 is with respect to the removal of judges. The reference made to these provisions within Section 23 (2) was to remove them from the effect, or possible conflict with the vetting process during the transition period. As such, they are not in anyway affected by the vetting process. However, Article 165(6), and the fundamental rights and freedoms, have a direct bearing on the vetting process, in that they would become an impediment to the process. Nevertheless, it is obvious to me that during the transitional period, the procedures to be undertaken required to be carried out within a limited period, with due regard to the specified subject matter and timelines. Any substantive provision that created a challenge to this constitutional objective would naturally require to be suspended in order to enable the transitional processes to be disposed of expeditiously. The position was no different in the case of the vetting process, and the specific timeline that the Vetting Board was required to adhere to.
As to whether the ousting of the fundamental rights and freedoms, is justified, this must be considered in the context of the actual right infringed. In this case, the complaint was more specifically with regard to the right to a fair hearing, as that was within the scope of the vetting process. Were adequate legislative measures taken to ensure that the judges and magistrates were accorded a fair hearing during the vetting process?
An examination of the Vetting Act will show that proper and adequate, provision was made for the observance of the rules of natural justice. Specifically, Sections 19 the Vetting Act makes provision for the process to be followed by the Vetting Board in the vetting of each judge and magistrate, including, the compiling of the complaints, the provision of notices for vetting, which would comprise the summary of complaints, the hearing, and most important that the rules of natural justice would be adhered to by the Vetting Board. Section 21 provides for the determination of suitability or not of all judges and magistrates by the Vetting Board, in accordance with the values and principles set out in Article 10 and 159 of the Constitution, and the removal of judges who were not found to be suitable. Section 22 provides for a review of the first decision by the Vetting Board, after which review the decision will be final.
I am convinced that, the drafters of the Vetting Act, and the legislature being cognizant of Section 23(2) and its effect, made adequate provision on the right to be heard and the need for observance of the rules of natural justice within the Act, to govern the proceedings of the Vetting Board Therefore with the conduct of hearings, and the right to apply for review of the determinations, it cannot be argued that a judge or magistrate had been denied their fundamental rights.
For these reasons, I find that the transitional provisions took precedence over Article 165 (6) and the provisions in respect of the fundamental rights and freedoms, as the vetting process adequately ensured the right to a fair trial and observance of the rules of natural justice, and as such stands conclusively overridden by Section 23, as read together with the Vetting Act.
Does the High Court have the jurisdiction to review decisions of the Vetting Board as established under the Vetting of Judges and Magistrates Act (Act No. 2 of 2011)?
It is my considered view that, the High Court does not have jurisdiction to review the decisions or supervise the vetting process or the Vetting Board. This is for reasons that, in interpreting the Constitution, the historical perspective, purpose and intention of the constitutional provision must be ascertained to appreciate the rationale behind its inclusion in the Constitution, ab initio. It was understood that, the reason behind the vetting process is to be discerned from the report of the Committee of Experts on Constitutional Review dated 11th October 2010. From the report it is clear that, the Committee was unanimous that the Judiciary required to be reformed to restore public confidence, integrity and accountability. Two remedial options were proposed, either that all the judges were to resign and reapply for their positions, or that judicial officers to remain in office, but were required to take a new oath of office and undergo a “vetting process” to ensure that the judges appointed were suitable to serve within the strict ethical principles as set out in the Constitution. The latter option was selected, presumably after adequate consultation with all stake holders including the judiciary, and by extension the judicial officers who were to be affected by the proposed vetting process.
Having regard to the circumstances that give rise to this appeal, when Section 23 is read together with the Vetting Act, it is clear to me that the Vetting Board, is an independent judicial body, sui generis, endowed with judicial or quasi- judicial functions, and constitutionally derived powers, necessary to carry out a specific mandate, akin to the Industrial, Land and Environmental Courts as established under the Constitution, in accordance with Article 162(2). Because of the existence of the constitutional ouster clause which excluded the jurisdiction of the court, the correct position was that the Vetting Board was not subordinate to the High Court, but was of equal standing. It is unequivocal that the vetting function in its entirety, was constitutionally vested in the Vetting Board, and not in the High Court. How then does the High Court become involved in supervising or reviewing the vetting process? The simple answer is, that it cannot, as this would result in an absurdity with the court vetting the suitability of its own members to remain in the judiciary. In the case of JVJumavs Chief Justice of Kenya& 6 Others (2010), the Court stated thus,
“In order to again deal with these claims would have to put on the cloth of an appellate court whilst it is constituted to determine a constitutional issue...it would imply that that there was always room for a party to have a second bite at the cherry...”
It is my view that Section 23(2) specifically excludes the supervisory jurisdiction of the High Court from any determinations of the Vetting Board with respect to the suitability of any judge or magistrate, and it therefore cannot be conceived how the High Court can have jurisdiction to entertain an application for review, or an appeal over the process or decisions of the Vetting Board.
Secondly, the Constitution being the embodiment of the norms, values and ethos of the people, any interpretation of Section 23 (2) would require to respect the desires of the people to exclude the jurisdiction of the courts in the vetting process of judges and magistrates. When interpreting Section 23(2), from the plain and ordinary meaning of the words, “...shall not be subject to question, in, or review by any court”, there can be no doubt that the framers of the Constitution intended to exclude the Court’s jurisdiction with respect to thevetting process and the decisions of the Vetting Board. To conclude otherwise, would render Section 23 supererogatory and redundant, and defeat the clear and stated purpose of vetting in the first place.
To emphasis this position, the Supreme Court in Re IIEC (Advisory Opinion) Constitutional Opinion No . 2 of 2011 stated thus,
The rules of constitutional interpretation do not favour formalistic or positivistic approaches (Articles 20(4) and 259(1)). The Constitution has incorporated non-legal considerations, which we must take into account, in exercising our jurisdiction. The Constitution has a most modern Bill of Rights, that envisions a human rights based, and social-justice oriented State and society. The values and principles articulated in the preamble, in Article 10, in Chapter 6, and in various other provisions, reflect historical, economic, social, cultural, and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence in Kenya. Article 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by the Courts.
Thirdly, the Anisminic case, was founded on the jurisprudence arising from the UK where, no written constitution exists. Unlike the UK, the Kenya Constitution 2010 is a written expansive, descriptive and all inclusive instrument, expressing the desires and aspirations of the Kenyan people. Article 1(1) of the Constitution, declares the paramount supremacy of the Constitution as derived from the people. It provide that,
“1(1) All sovereign power belongs to the people of Kenya, and shall be exercised only in accordance with this Constitution.”
The principles set out by the High Court in its judgment makes reference to ouster clauses in statutes, as opposed to constitutions. I have no hesitation in accepting the decision of the High Court where, the Anisminic principles are applied and specifically limited to Acts of Parliament. However, when compared and contrasted with the subject ouster clause in the Kenya Constitution, I find that an ouster clause in the Constitution cannot be downgraded or disregarded with the same arguments applicable to statutes. Doing so would amount to an aberration and a travesty. In the case of Section 23(2),its inclusion in the Constitution was to ensure that the vetting process would proceed without any oversight or interference from the courts. To fail to uphold the ouster clause contained in Section23 (2) in its clear and unequivocal form, would be to flagrantly disregard and trash the hopes and aspirations of the Kenyan people to a radically reformed judiciary, and certified to be so, by an independent constitutional body. I am therefore of the considered view, and hold that the decisions in respect of statutory ouster clauses in the UK and other jurisdictions, must be distinguished from the constitutional ouster clause contained in Section 23 (2) of the Constitution that is under consideration. In particular, the Anisminiccase, is limited in its application by virtue of its clear reference to statutory finality clauses, as distinct from constitutional ouster clauses. I therefore find and hold that, the High Court erred on wholly relying on the Anisminiccase as the basis upon which to derive its jurisdiction to supervise and review in the vetting process.
Fourthly, as a result of the transitional provisions, the supervisory jurisdiction of High Court was specifically excluded, to pave way for the vetting of judges and magistrates by an independent body, unconnected with the judges and magistrates who were to be vetted. Once the vetting process was incorporated in the Constitution, and the Vetting Act came into force, the substantive provisions of the Constitution contained in Chapter 4on the fundamental rights and privileges, more particularly the right to be heard, were suspended, and replaced by the rights conferred by the Vetting Act, which govern the proceedings of the Vetting Board. Under Sections 19, 21, and 22 of the Vetting Act, adequate provision was made for the conduct of comprehensive hearings, either public or private as the case may be, in order to ensure that the rights of judges and magistrates were duly protected. Upon completion of the vetting process, and after determination, there was to be no recourse to the Courts, but possibly a right to compensation could accrue.
Sixthly, the purpose of including this ouster clause to exclude the jurisdiction of the High Court was to prevent and avoid the mischief whereby the judges through the courts, would become the judge and jury in their own cause.It is not impossible to imagine the effect of the courts being seen to take over the process of vetting through oversight of the process and reviewing the decisions of the Vetting Board. The Kenyan nation will rise up and say, “.....it is back to business as usual in the judiciary, as the judges have succeeded in hijacking the process of the vetting of judges and magistrates”. It bears repetition that the post election violence of 2007 and 2008 was contributed to a large measure by the public’s loss of confidence in the judiciary to resolve serious political disputes.
I find a parallel between the ouster clause in Section 23(2) and the one that formed the subject of the appeal in the Nixon v. United Stateset al 506 U.S. 224 (1993)which governed impeachment proceedings against, Chief Judge Nixon, and provided that the “Senate shall have the sole Power to try all impeachments.”Similar arguments were raised by Nixon but overruled by the District Court, and the Court of Appeal on grounds that his claim was non justiciable. At page 235 Rehnquist CJ stated:
“Judicial involvement in impeachment proceedings, even if for the purpose of judicial review, is counterintuitive because it would eviscerate the “important constitutional check” placed on the judiciary by the Framers. Nixon’s argument would place final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate.”
Likewise, the decision of the High Court effectively places final reviewing authority in the hands of the same judiciary, whose members the vetting process was meant to determine suitability or otherwise to remain in the judiciary, with due respect, it cannot stand.
I would allow the appeal, but having regard to the majority who are of a contrary order, I order that each party bear its own costs due to the public interest nature of these proceedings.
Dated and delivered at Nairobi this 18th day of October, 2013.
A.K. MURGOR
....................................
JUDGE OF APPEAL
JUDGMENT OF FATUMA SICHALE, JA.
(DISSENTING)
This is an appeal arising out of the judgment of five High Court Judges namely, Justices J. Havelock, J. Mutava, P. Nyamweya, E. Ogola and A. Mabeya delivered on 30th October, 2012. The proceedings, the subject matter of this appeal are:-
1. H. C. JR. No. 295 of 2012 filed by Hon. Lady Justice Jeanne W. Gacheche against the Board and the Judicial Service Commission JSC). That suit had four parties named as interested parties namely:
(a) The Attorney General
(b) The Law Society of Kenya
(c) The Kenya Magistrates and Judges Association (KMJA)
(d) Hon. Justice E. O. O'Kubasu
2. Eldoret H.C. Constitutional Petition No. 11 of 2012 by the Centre for Human Rights and Democracy and 2 Others against the Board and the JSC. It had two interested parties namely;
(a) Hon. Justice Mohammed Ibrahim and
(b) Hon. Justice Roselyne Nambuye
3. Nairobi H.C. Constitution Petition No. 433 of 2012 by Hon. Justice Riaga Omolo against the Board, the Attorney General and the JSC.
4. Nairobi H.C. Constitutional Petition No. 434 of 2012 by Hon. Justice S.E.O. Bosire against the Board, the Attorney General and the JSC.
5. Nairobi H.C. Constitutional Petition No. 438 of 2012 by Hon. Justice Joseph G. Nyamu against the Board and the Attorney General with the JSC named or enjoined as an Interested Party.
All the above petitions were filed by or on behalf of Judges who were serving as at 27th August, 2010. The substantive petitions seeking various orders and declarations are still pending at the High Court.
However, when the matter came before the five Judges as indicated above, it was directed that the matters be heard separately except with regard to preliminary jurisdictional issue touching on all the matters and which was raised by the Law Society of Kenya (LSK), the appellant herein which had been the 3rd Interested Party in Petition No. 11 of 2012. The LSK challenged the jurisdiction of the High Court to hear and determine the matter pleaded before it vide a Notice of Motion dated 5th October, 2012.
The Notice of Motion had been provoked by the issuance of conservatory orders within that Petition on 25th September, 2012. The majority of the three-Judge bench that heard the Interlocutory Application (Mohammed Warsame, J.) (as he then was) and G. v. Odunga, J. with G. Kimondo, J. (dissenting) had ordered as follows:
“1. We direct that this matter be placed before the Hon. Chief Justice as soon as possible for purposes of enlarging the panel to five.
2. In exercise of our powers under Article 23(3)(c) of the Constitution and having addressed our minds to all the issues raised we grant an order directing or ordering that all matters or proceedings before the Board be and is ( sic) hereby stayed for a period of 14 days or until further orders ...”
In the Notice of Motion filed by the appellant dated 5th October, 2012, they sought, inter alia the following prayers:
“7. THAT the Honourable Court do subsequently direct that substantive hearing of the Applicant's challenge to the jurisdiction of the Court on matters touching on the judicial vetting process be heard and determined on the merits prior to the grant of any further orders against the respondents, whether interim, conservatory or of any other nature in the Petition herein or otherwise howsoever, designed to delay, hinder, supervise or affect the process of vetting of Judges and Magistrates as by law established pursuant to section 23 of the Sixth Schedule to the Constitution of Kenya 2010 and the vetting of Judges and Magistrates Act, No. 2 of 2011.
8. THAT the Honourable Court do determine whether and if so, to what extent, it has jurisdiction to deal with matters touching on the judicial vetting process established under Section 23 of the Sixth Schedule of the Constitution of Kenya and the Vetting of Judges and Magistrates Act, No. 2 of the 2011.
9. THAT this Honourable Court do dismiss the Petition filed herein in limine on account of lack of jurisdiction and/or lack of demonstrable or prima facie merit.”
The various parties filed their necessary responses to the appellant’s Notice of Motion. Thereafter the learned Judges drew the following issues for determination:
“(a) Whether the learned Judges of the High Court applied the wrong principles in interpreting the constitutional ouster clause.
(b) Whether the learned Judges erred in holding that Article 165 of the Constitution conferred on them supervisory constitutional jurisdiction over the Vetting Board.
(c) Whether the learned Judges fell into error in not treating the vetting process as a political question reserved to the Legislative and to judicial enquiry.
(d) Whether the learned Judges erred in applying inappropriate common law judicial decisions on ouster or finality clauses.
(e) Whether the learned Judges fell into error in holding the High Court's jurisdiction to interpret the Constitution under Article258 or to enforce fundamental rights under Article 22 to be unlimited.”
Upon careful examination and consideration of the parties' submissions as well as the authorities cited, the learned Judges of the superior court held as follows:
“1. The High Court shall not stop the process of vetting of Judges and Magistrates pursuant to the Vetting Act, 2012 saw to the extent determined as merited in individual cases.
2. 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 under the Constitution and the Vetting Act.
3. 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.
4. The High Court shall have jurisdiction to consider matters relating to extension of time of the Vetting Board affected pursuant to Article
259(9) of the Constitution.
5. The High Court shall have jurisdiction to issue, review, uphold or vacate conservatory orders in connection with the vetting process.
6. The High Court shall have jurisdiction to determine any questions ancillary to or consequential upon the vetting process.”
In arriving at the conclusion that the High Court had jurisdiction, the learned Judges underscored the critical issue of whether the High Court has a supervisory control over the Vetting Board and rendered itself thus:-
“The question of whether or not this Court has jurisdiction over the Vetting Board's processes and decisions is arguably the single most important determination that we are required to make at this phase of establishing jurisdiction. Essentially, we are required to answer the probing question of whether or not section 23(1) of the 6th Schedule of the Constitution hereinafter called 'the ouster clause' in effect operates to absolutely unseat the jurisdiction of this Court as conferred by the Constitution of Kenya, 2010.”
The High Court next proceeded to find that the Vetting Board was “akin to any Tribunal which is susceptible to the jurisdiction of this Court under Article 165(b) of the Constitution”
The LSK was dissatisfied with the ruling of the Judges and immediately filed a Notice of Appeal on 1st November, 2012 and hence this appeal. The LSK's memorandum of appeal had 41 grounds of appeal which can be summarized as follows:
“(a) Whether the learned Judges of the High Court applied the wrong principles in interpreting the constitutional ouster clause.
(b) Whether the learned Judges erred in holding that Article 165 of the Constitution conferred on them supervisory constitutional jurisdiction over the Vetting Board.
(c) Whether the learned Judges fell into error in not treating the vetting process as a political question reserved to the Legislative and to judicial enquiry.
(d) Whether the learned Judges erred in applying inappropriate common law judicial decisions on ouster or finality clauses.
(e) Whether the learned Judges fell into error in holding the High Court's jurisdiction to interpret the Constitution under Article 258 or to enforce fundamental rights under Article 22 to be unlimited.”
The LSK sought the following prayers from this Court, namely that:-
“1. The appeal be allowed with costs.
2. The ruling and order upholding the jurisdiction of the High Court as therein stated be reversed and set aside and an order be granted in favour of the appellant varying and restating the jurisdiction of the High Court and upholding the ouster previsions in the vetting clause in regard of the various petitions/applicants filed herein.
3. The orders given on 30th October, 2010 stopping the de-gazettement of Judges found unsuitable and ordering the determination of their petitions/applications individually be set aside and replaced with an order dismissing the petitions/application on the ground of lack of jurisdiction and/or demonstrable or prima facie merit.”
Submissions in Support of the Appeal
The appeal before us proceeded to hearing on 8th July, 2013. Mr. Kanjama, the learned counsel for the appellant, in arguing this appeal, submitted that the core issue, the subject matter of this appeal is whether the High Court has jurisdiction to deal with review decisions of the Vetting Board inspite of the ouster clause contained in Section 23 of the Sixth Schedule of the Constitution. The learned counsel faulted the decision of the High Court when it held that judicial power was exclusive to the courts as in Article I paragraph 3 of the Constitution.
“(3) Sovereign Power under the Constitution is delegated to the following state organs, which shall perform their functions in accordance with the Constitution ...
(c) The judiciary and independent tribunals.”
In his view, the Courts do not possess a monopoly of judicial authority as by dint of Article (1)(3)(c) it is delegated to the tribunals as well. However, he argued, that whereas decisions and actions of independent tribunals that are of statutory creation or origin were amenable to judicial review and supervisions by the High Court by dint of Article 165(6) of the Constitution which provides:
“(6) The High Court has supervisory jurisdiction over the subordinate courts and every person, body or authority exercising a judicial or quasi- judicial function, but not over a superior court”,
the Board was not subject to the said supervision. The learned counsel's argument was that the Vetting Board was a body sui generis and not an inferior tribunal to be supervised by the High Court. He was of the view that if the Court was to hold that the Vetting Board was a subordinate court that interpretation would “make empty Section 23 of the 6th Schedule and would succeed in voiding substantive provisions of the Constitution.” According to the appellant's learned counsel the Vetting Board is not a subordinate tribunal and its special character was not lessened by its not being listed in Article 162 that enumerates the superior courts.
The learned counsel pointed out that the essence of the transitional clauses was to serve purposes that were time bound and were not included in the substantive part of the Constitution as this would 'clatter' the Constitution. This did not however place the 6th Schedule in an inferior position vis-avis the substantive provisions of the Constitution.
Mr. Kanjama pointed out that the background that led to the setting up of the Board was informed by a middle ground position that was taken in dealing with the Judiciary. The framers of the Constitution had grappled with a provision requiring all judicial officers to be sent home and thereafter re-applying for their jobs. The other alternative was to allow for a smooth transition without the necessity of vetting. He submitted that the Kenyan people opted for a middle-ground position of the vetting process; and that to insulate the process from judicial interference, it was imperative that the court is locked out of an opportunity to review the decisions of the Board, as otherwise to allow for a supervisory control would cause delays and further, would be tantamount to one being a Judge in one's cause. It was necessary therefore,
that the determination of the Board on the suitability of a judicial officer be vested in a Board with finality and further that the jurisdiction of the Courts be ousted. He likened this process to the powers given to the Supreme Court in matters reserved to its exclusive jurisdiction and are not subject of the High Court's supervisory control. The learned counsel submitted that by its very special nature the Vetting Board was immunized from the High Court's intrusion. It was therefore not available to the High Court to discover, rediscover or invent a jurisdiction over the Board that was never intended by the Kenyan people.
In his further submissions, the learned counsel for the appellant faulted the High Court for going against the decision of the Supreme Court in the Advisory opinion rendered in Re:
The Matter Of The Interim Independent Elctoral Commission [2011] eKLR on the limits of a
court's jurisdiction, thus:
“[30] The Lilliam 'S' case [Owners of Motor Vessels 'Lillian S' v. Caltex Oil (Kenya) Ltd [1989} KLR1] case establishes that jurisdiction flows from the law, and the recipient-court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.”
It was the learned counsel's submissions that Section 23 was so clear and in assuming jurisdiction that does not exist, the High Court arrogated to itself a jurisdiction through judicial craft.
Mr. Kanjama also took exception to the High Court's failure to distinguish between ouster clauses provided for statutorily and ouster clauses provided for by the Constitution as it did not distinguish between a Constitutional ouster clause and a statutory ouster clause. According to counsel, the High Court's failure to distinguish between the two was demonstrated
by their reliance on The Anisminic Ltd v. The Foreign Compensation Commission and Another [1969] 2 A.C. 147; [1969] 2 WLR 163; 113 S.J. 55; [1969] 1 ALL CR 208 and in Attorney
General v. Ryan [1980] AC 718 wherein the ouster clause referred to therein was a statutory one as opposed to a Constitutional ouster clause
And as regards authorities from Trinidad and Tobago on Constitutional ouster clauses, the learned counsel submitted that these are neither binding nor persuasive due to “the different constitutional and legal environment in West Indies” which is dissimilar to the Kenyan situation. The dissimilarity is captured in ground 28 of his memorandum of appeal to wit:
(a) Their constitutional history of adoption of an allochtonous constitution from their colonial maters (United Kingdom),
much like our previous but not current autochthonous Constitution.
(b) Their full dependence on English common law, as well as English Courts supremacy though the UK Privy Council (as a Superior Court) leading to their application of English common law without any distinction or reservation.
(c) Their constitutional structure, as small Islands with monarchic dependency, or republican subservience to the Queen or her representative the Governor General as Head of State.
(d) The fact that the ouster clauses referred to in the West Indies Cases had been introduced by amendments to the Constitution, but were not of original provenance.
(e) The fact that the Kenyan Constitution was introduced by full exercise of constituent power by Kenyans in a national referendum after extensive and intensive voter and civil education, preceded by generalized public participation, thus affecting the approach to be taken by the Courts in interpreting the Constitution.
(f) The conflict of interest the ouster provision in Kenya sought to avoid, in relation to processes involving judicial removal or vetting, totally contrary to the West Indies cases.
(g) The fact that the ouster provision in the Kenyan Constitution, as read together with the Vetting Act, reposed the mechanism for vetting in a judicial or quasi judicial body that would thus be competent to deal with
jurisdictional issues, as opposed to the West Indies cases that dealt with ouster clauses in regard to administrative bodies.
In respect of judicial authorities on constitutional ouster clauses from Pakistan, Mr. Kanjama sought to distinguish them in Ground 32 of the Memorandum of Appeal;
“... the learned Judges erred in law and in fact by quoting with approval the Pakistan decision in Khan v. Musharaf, without distinguishing the case on the grounds of the dictatorial nature in which the Pakistan Constitution had been imposed (by military coup), the political situation applying in Pakistan at the time including widespread violation of individual rights by the military Government, and the need of the Courts to act as the last bastion in regard to administrative decisions of the Pakistan Government”
And as to the allegation of violation of fundamental rights as contained in the Bill of Rights, the learned counsel's contention was that that was still within the purview of the Vetting Board. At this juncture, he posed a rhetorical question,
“Had the new Constitution provided that all Judges go home could they have gone to the High Court to urge a contravention of their fundamental rights?”
The learned counsel referred us to the Supreme Court case of Samuel Kamau Macharia and Anor v. Kenya Commercial Bank Ltd and 2 Others [2012] eKLR and the High Court case of Peter Oduor Ngoge v. Francis Ole Kaparo and 5 Others [2012] eKLR which adopted the position in the Lilian“S” case in enunciating a strict and and narrow approach to their jurisdiction.
On his part, Mr. Wilfred Nderitu on behalf of the 4th and 6th respondents supported the LSK's appeal and urged us to find that the Vetting Board being a sui generis tribunal, is insulated by Section 23 of the 6th Schedule from the supervisory jurisdiction of the High Court and that commissions that do not have insulating provisions akin to Section 23 are subject to supervisory control of the High Court. The learned counsel's view was that it is only in clear cases where there has been a fundamental departure from the statutory remit of a Board that the High Court may be vested with residual jurisdiction, for example, if the Board proceeded to vet a medical doctor as opposed to a judge or magistrate.
The learned counsel took us down a historical journey to the 2003 “radical surgery” of the judiciary wherein the cases were reopened through a judicial process when in fact they ought to have been shelved. He contended that the reason for the establishment of the Vetting Board was to set up an organ that would be insulated from the Court's review as to do otherwise would be allowing Judges to sit on matters affecting their colleagues, hence a clear case of conflict of interest or an appearance of bias. Mr. Nderitu pointed out that Section 23 was part of the Constitution and failure to give full effect to Section 23 is tantamount to abrogating the Constitution.
Mr. Njoroge, learned counsel for the Attorney General, the 5th respondent herein, also supported the appeal. He submitted that Section 23 of the 6th Schedule was an expression of the will of the sovereign people of Kenya and further that judicial authority under Article 159 of the Constitution it vested on the Kenyan people. He likened the vetting process to the “vetting” by the Judicial Service Commission of all those desirous of joining the Judiciary as Judges. He lauded the provisions of Section 23 of the 6th Schedule which ousted the supervisory role of the High Court.
Submissions Opposing the Appeal
On behalf of the 1st respondent, Dr. Khaminwa supported the position arrived at by the Judges of the superior court. He drew our attention of case law emanating from India, Trinidad, Tobago, the UK and Barbados which all affirm the position that even when the Constitution provides for an ouster clause, the courts are not excluded from exercising its supervisory role.
He was of the view that the Vetting Board is an inferior tribunal under the Constitution and the High Court was possessed of the jurisdiction to review its proceedings. He submitted that although under Article 1(3) of the Constitution power is delegated to the Judiciary and independent tribunals by the Kenyan people, the latter are not experts in law so as to interpret the Constitution.
Mr. Katwa Kigen for the 2nd respondent, refuted the proposition by the appellant to the effect that the Constitution did oust the power of the High Court to supervise the Vetting Board. He cited the 4 instances wherein the jurisdiction of the High Court under the 2010 Constitution is ousted. These are:-
i) Removal of a President – Article 165(3)(c).
ii) Courts established with similar status of the High Court to hear and determine employment and labour disputes
iii) Courts established with similar status as the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to land.
iv) Supervision of the Superior courts.
To him it would be judicial craft if this Court was to find that the Vetting Board is excluded from the supervisory jurisdiction of the High Court as set out in Article 165. He further contended that under Article 165(3) the High Court it mandated to hear and determine complaints of violation of rights from all citizenry, the Judges included. The learned counsel cited two instances when the Vetting Board declared two Judges unsuitable only for the JSC to find them suitable to serve in even higher positions. Mr. Katwa further contended that Section
23(2) of the 6th Schedule is in conflict with Articles 165 and 258 as relates to the High Court's jurisdiction, as well as Article 27 of theConstitution on equity and freedom from discrimination.
The position taken by Mr. Gicheru, the learned counsel for the 3rd respondent was that the appeal was devoid of merit. He postulated that the Vetting Board is created by Section 6 of Act No. 2 of 2011 and that under Article 165(6) of the Constitution, the Vetting Board is amenable to the supervisory jurisdiction of the High Court. He maintained that the learned Judges of the superior court carefully examined the ouster clauses in 7 different jurisdictions and in all these jurisdictions, the courts have frowned upon ouster clauses, particularly when they affect the Bill of Rights and the rules of natural justice.
Mr. Ochieng Oduol for the 10th and 11th respondents urged the Court to adopt a purposive approach in interpreting the Constitution. He submitted that Article 23(1) expressly vests in the High Court the jurisdiction and power to hear and determine questions of whether fundamental rights have been breached. Mr. Oduol further submitted that the declarations sought by his clients in the petition fall squarely within the enforcement and interpretative jurisdictions of the High Court under Article 23(1) and 165(3)(b) and (d). He relied on the In Re
the Matter of Advisory Opinions of the Supreme Court under Article 163(3) of the Constitution, Constitutional Application No. 2 of 2011 where it was held that:
“[43] Quite clearly, the High Court has been entrusted the mandate to interpret the Constitution ... only where litigation takes place entailing issues of constitutional interpretation, must the matter come in the first place before the High Court, with the effect that “interpretation of the Constitution by both the Court of Appeal and the Supreme Court will have been limited to the appellate stages.”
As regards the ouster clause in Section 23(2) of the 6th Schedule the learned counsel submitted that the said provision was enacted with the legitimate expectation that the vetting process would be carried out in strict compliance with the Constitution as well as the Vetting Act. He submitted that Section 23(3) was inapplicable in instances where the Board had contravened Constitutional provisions as the case herein. Mr. Oduol submitted that “strange things” occurred at the Board
including an allegation that one of his clients had presided over torture of accused persons during the 1982 coup hearings and yet this Judge did not preside over the military tribunals. The second Judge whom he represents was found to have disobeyed a court order which allegation was later found to be baseless and the Board even apologized to the Judge.
To buttress his argument on ouster clauses, the learned counsel referred us to the famous case of Anisminic v. Foreign Compensation [1969] 2 AC 147 (HL) where the House of Lords
in determining a finality clause in an Act of Parliament establishing the Foreign Compensation Commission upheld the jurisdiction of the Court to intervene and quash the decision of the Commission. He also referred us to the Indian case of Kesavanada Bharati v. State of Kerala and Another [1913] S.C. 1461 where the Court intervened in spite of an ouster clause barring any court from questioning any statute giving effect to state policy. He thus contended that the interpretation of the Constitution including the constitutionality of a statute remains the province of the High Court, with appeals to the Court of Appeal.
In concluding his submissions, Mr. Oduol opined that this Honourable Court is enjoined under Articles 20, 21 and 259(1)(b) to interpret the Constitution in a manner that advances the rule of law, human rights and fundamental freedoms in the Bill of Rights which can only be limited as provided for by Articles 24 and 25 of the Constitution. He stated that they had placed reliance on many examples from the United Kingdom, India and Barbados as they all provide that an ouster clause is not effective as against an infringement of the Bill of Rights and the principles of natural justice. He submitted that Article 25 is very clear on the rights that may not be limited and the right to a fair trial is one such right that was not taken away by Section 23(2).
Mr. Mugambi for the 13th respondent decried the notion propounded by the appellant and all those in support of the appeal that the Board could be left to act with impunity and go unchecked. He submitted that the respondents who were Judges need to be protected from gross violations of their fundamental rights by the Board.
Mr. Mwenesi on behalf of the 9th respondent and on behalf of Justice O'Kubasu, an Interested Party, vehemently opposed the appeal. He submitted that the Board had operated outside its time, which fact was admitted by the Board itself and that the rulings made during this time should be reversed. He faulted the appellant who had in fact acknowledged that ouster clauses can be ignored although in Ground 27 of its appeal it relied on authorities from West Indies which had held that constitutional ouster clauses could be ignored for “strong and compelling” reasons.
In a brief rejoinder, Mr. Kanjama for the appellants urged us to find that in allowing the High Court to scrutinize the record or the process leading to removal of a party in the absence of jurisdiction, would have the effect of voiding the Constitution.
Analysis and Conclusion
In brief the above sums up the arguments of all those supporting the appeal and all those opposed to the appeal. In my view the single most important issue for determination is whether the High Court was vested with supervisory jurisdiction over the Judges and Magistrates Vetting Board in the light of the provisions of Section 23(2) of the 6th Schedule of the 2010 Constitution. The issue of jurisdiction is key as without it the entire process becomes a nullity. Case law is now replete with authorities in support of this proposition.
In Attorney General of Lagos v. Dosunmu [1989] 6 SCNJ, while expousing the significance of jurisdiction in proceedings generally, Justice Kayode Eso stated thus:
“... The sub-stratum of a court is no doubt jurisdiction. Without it, the “ labourer” therein, that is both litigants and counsel on the one hand, and the Judge on the other hand, labour in vain ...”
No less illuminating in this regard is the contribution of Justice Akpata in State v. Ollagoruwa
[1992] C.S.C.D. 17 at 19 who in his words said:
“... A court with jurisdiction builds on a solid foundation because jurisdiction is the bedrock on which court proceedings are based, but when a court lacks jurisdiction and continues to hear and determine judicial proceedings; it builds on quick sand and all proceedings and steps taken on it will not stand ...”
In a nutshell, jurisdiction may be defined as the authority of a court of law to exercise judicial power in a matter brought to it by litigants and of which it is expected to pronounce judgment on the matter or issues raised.
In Peacock v. Bell and Kendal [1667] 85 E.R. 81, pp. 87:88 it was held that:
“... nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly stated ...”
In the often cited case of The Own ers of Mot or Vessel “Lill ian S .” v. C altex Oil Kenya
Ltd [1989] KLR 1 at page 14 it was stated:
“Jurisdiction is everything. Without it, a court has no power to make one step, where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence and a court of law downs its tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction.”
This was further expounded by Ojwang J. (as he then was) in Boniface Waweru v. Mary Njeri and
Another H.C. Misc. Application No. 639 of 2005 (unreported)
“Jurisdiction is the first test in the legal authority of a court or tribunal, and its absence disqualifies the court or tribunal from determining the question.”
Further in the matter of the Interim Independent Electoral Commission [2011] eKLR,
the Supreme Court held at paragraph 29 as follows:
“[29] Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by Statute Law, and by Principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel 'Lillian S' v. Caltex Oil (Kenya) Ltd [1989]
[30] The Lillian 'S' case establishes that jurisdiction flows from the law, and the recipient court is to apply the same with any limitations embodied therein ... in the case of the Supreme Court, the Court of Appeal and High Court, these respective jurisdictions are donated by the Constitution.”
What then is the jurisdiction of the High Court as regulated by the Constitution, by Statute Law, and by Principles laid out in judicial precedent?
Article 165(3) of the Constitution sets out the Jurisdiction of the High Court. It provides as follows:
“165(3) Subject to clause (5), the High Court shall have -
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of -
(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191;
and
(e) any other jurisdiction, original or appellate, conferred on it by legislation.
4. Any matter certified by the court as raising a substantial question of law under clause (3)(b) or (d) shall be heard by an uneven number of Judges, being not less than three, assigned by the Chief Justice.”
Article 165(5) of the Constitution limits the jurisdiction of this Court in two respects -
(i) matters “reserved for the exclusive jurisdiction of the Supreme Court;
(ii) matters falling within the jurisdiction of certain special Courts established by the legislature dealing with employment and labour relations, and with environment and land.
Whilst Article 165(6) provides that
“the High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi- judicial function, but over a superior court.”
On the need to act within the limits of jurisdiction, the Supreme Court in the case of
Samuel K. Macharia v. Kenya Commercial Bank [2012] eKLR, rendered itself thus:
“Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
On the same point, the Supreme Court had this to say In the Matter of Advisory Opinion
of the Court under Article 163 of the Constitution (Constitutional Application No. 2 of 2011 as paragraph 30
“... a court may not arrogate to itself jurisdiction through the craft of interpretation or by way of endeavours to discern or interpret the intentions of Parliament, where the legislation is clear and there is no ambiguity.”
Having set out the jurisdiction of the High Court as regulated by the Constitution, the next issue for determination is whether the High Court had supervisory jurisdiction over the Vetting Board. To answer this question, it is imperative to examine the background to the enactment of the transitional provisions and in particular, to the ouster clause in Section 23(2) of the 6th Schedule. The promulgation of the new Constitution in 2010 heralded a new dawn for Kenya. Kenyans made a resounding decision to deal with a past that had haunted them for a period that seemed to last forever. In the period leading to the promulgation of the 2010 Constitution, the Kenya Judiciary had come under sustained criticism for its failure to uphold the rule of law. It was accused of many ills including the vice of corruption and the adage “why Hire a Lawyer when
you can pay a Judge” described how low the Judiciary had sunk. In order to deal with the vice, the initial proposal was to dismiss all the Judges and Magistrates and then ask those who wished to continue to make fresh applications. This proposal was soon discarded and the framers of the Constitution settled for a less drastic process of vetting the Judges and Magistrates. The decision to vet was informed by the fact that not all the judicial officers were corrupt and there was need to vet them so as to weed out those who had brought disrepute to the institution and retain those who were deserving of such retention.
The process of vetting the judicial officers was urgent. The Kenyan people were facing a General Election in 2012 and going by the experience of the election period of 2007/2008, where some candidates refused to take their grievances to Court for what they termed as lack of confidence in the Judiciary, the consequence of which the country was plunged into a state of near civil war, there was an urgent need to do a 'quick-fix'. As a result of this urgency, the vetting process was to be a transitional one. The Committee of Experts had expressed their intention of drawing up a transitional schedule in their final report dated 11th October, 2010 by stating as follows:
“When a new constitution is introduced, a range of provisions are needed to ensure that the move from the old order to the new order is smooth, and, in particular, that the changes expected by the new constitution are implemented effectively and those institutions that are retained under the new constitution continue to function properly. The “ transitional” provisions that do this are usually not included in the body of the constitution because they have a temporary lifespan. Instead they are included in a schedule which is part of the constitution but, because it is appended at the end of the constitution, its provisions will not interfere with the 'permanent' provision of the constitution in the future.”
Accordingly, Section 23 of the 6th Schedule providing for “Transitional and
Consequential Provisions” was formulated. The said section provides as follows:
“23(1) Within one year after the effective date, Parliament shall enact legislation, which shall operate despite Article 160, 167 and 168, establishing mechanisms and procedures for vetting, within a timeframe to be determined in the legislation, the suitability of all judges and magistrates who were in office on the effective date to continue to serve in accordance with the values and principles set out in Articles 10 and 159.
(2) A removal, or a process leading to the removal, of a judge, from office by virtue of the operation of legislation contemplated under subsection (1) shall not be subject to question in, or review by, any court.”
Pursuant to these provisions, Parliament enacted the Vetting of Judges and Magistrates Act
(VJMA) 2011 (Act No. 2 of 2011). The VJM Act came into force on 22nd March, 2011. Section
6 of the Act establishes an independent Board to be known as the Judges and Magistrates Vetting
Board (The Board). The functions of the Board are provided in Section 13,
“13. The function of the Board shall be to vet judges and magistrates in accordance with the provisions of the Constitution and this Act.”
Whilst Section 2 of the Act defines “vetting” as
“... the process by which the suitability of a serving judge and magistrate to continue serving in the Judiciary is determined in accordance with this Act.”
And to underscore the urgency, the Act established time-frames. The Board was mandated to operate for one year with the possibility of extension for a further year. First on line to be vetted were the Court of Appeal Judges whose vetting was to be completed within the first 3 months of the process. And to ensure expeditious disposal of matters, the Act authorized the Chairman to constitute three panels to sit concurrently.
Accordingly, Section 23(2) providing for an ouster clause was meant to serve during the transitional period. I am fortified in this proposition by the realization that the Board was time- bound as indeed, if Section 23(2) had not ousted the jurisdiction of the High Court, what would have happened of a party who moves to court to challenge the processes of the Board and whilst still litigating in court, the Board winds up its operations? Such a litigant, if successful in court, would not have been vetted and there would be no mechanism for vetting him or her. What would be the fate of such a judicial officer? It is therefore not difficult to fathom the reasons of providing for an ouster clause in Section 23(2) of the 6th Schedule; which as I have stated above was to serve during the transitional period.
Furthermore, Section 23(1) of the 6th Schedule provided that the legislation to be enacted would operate inspite of Articles 160, 167 and 168 of the Constitution.
Article 168 of the Constitution provides for the processes of removal of a judge. It states:-
“168(1) A judge of a superior court may be removed from office only on the grounds of ...
(2) The removal of a Judge may be initiated only by the Judicial Service Commission acting on its own motion or on the petition of any person to the Judicial Service Commission.”
Suffice to state that Article 168 of the Constitution would apply in respect of those not serving before the effective date and Section 23(2) would apply in respect of those who were serving before the effective date.
In my view, it is erroneous to argue that Section 23 of the 6th Schedule was unconstitutional as it was not in keeping with Article 168 of the Constitution as both Section 23 and Article 168 serve two distinct purposes, the former to vet judicial officers who were in office on the effective date and the latter to provide for mechanism of removal of those who would join the Judiciary after the effective date either by way of fresh appointment or after the process of vetting by the Board.
The other argument raised by the respondents counsels was that the ouster clause in Section 23(2) did not oust the jurisdiction of the High Court as Article 165(5) of the Constitution limits the jurisdiction of the High Court in only two instances, namely in respect of matters
“5(a) Reserved for the exclusive jurisdiction of the Supreme Court ... or
(b) falling within the jurisdiction of the Court's contemplated in Article
162(2)
and further that Article 165(6) which provides:
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi- judicial function, but not over a superior court.”
did not exempt the Board from the supervisory jurisdiction of the High Court. With tremendous respect to the respondents' counsels', the transitional provisions found in the 6th Schedule were meant to serve for a season. Once the transitional period was over, there would be no need for these transitional provisions. This explains the reason of non-inclusion of the Board in the exceptions provided in Article 165(5) of the Constitution. Similarly, there was no need to exempt the Board from the supervisory jurisdiction of the High Court as provided in Article
165(6) of the Constitution as to do so would have clattered the Constitution with transitional provisions which were to fade away in the fullness of time. I am fully in support of the contention by the appellants counsel that the design of Section 23 of the 6th Schedule was to serve the transitional period and there was absolutely no reason to include the Board in Article
165(5) and to exclude it from the provision of Article Article 165(6) of the Constitution; as doing so would have required amending the Constitution after the vetting was completed.
The other argument propounded by the respondents was that the Board was an inferior tribunal as it does not find its place amongst superior courts as provided in Article 162 of the Constitution. It was because of this “inferior status”, it was argued, that the Board had to be subjected to the supervisory jurisdiction of the High Court. Again, Section 23(2) of the 6th Schedule having been designed for the transitional period, it is my considered view that this explains its absence in Article 162 of the Constitution. I therefore reject the proposal that the Board was subject to supervisory jurisdiction of the High Court for the reason that it was not ranked together with other superior courts. Again, and as stated above, there was no reason to list the Board as one of the superior courts, as it had a time-bound lifespan and which was of a temporary nature.
The common position of all counsels in this matter was that Articles 10 and 259 of the Constitution require a purposive interpretation of the Constitution and one that promotes the values and principles of the Constitution and contributes to good governance. However, there was variance as to what constituted a purposive approach. Article 10 of the Constitution provides that the national values and principles of governance enunciated in that Article bind all State Organs, State officers, Public Officers and all persons. On the other hand Article 259 calls for the interpretation of the Constitution in a manner that, inter alia, “promotes its values and principles.” Chapter 6 of the Constitution lays down the principles upon which State officers should conduct themselves. This Chapter makes it clear that the power exercised by State officers is a public trust that is to be exercised to serve the people. In exercising this power, State officers are required to demonstrate respect for the people of Kenya, make decisions objectively and impartially, refuse to be influenced by favouritism or corruption, serve selflessly and be accountable for their actions.
The process of vetting was aimed at restoring trust and confidence in the Judiciary. The purposive interpretation of the Constitution call for consonance with the ideals of good governance. To this extent, I find that Section 23(2) is in harmony with the ideals enunciated in
the 2010 Constitution. The need for such harmony was underscored in the case of Tinyefuza vs
AG Constitutional Appeal No. 1 of 1997 when the Court held -
“The entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paromountancy (sic) of the written Constitution.”
In my view, when the 2010 Constitution heralded a new dawn, one of the aspirations of the Kenyan people was to be led by men and women of honour and who satisfy the criteria set out in Chapter Six of the Constitution. Hence, the substantive provisions and the transitional provisions of the Constitution cannot be read in isolation To this extent I find that the provisions of Section 23 of the 6th Schedule sustains the substantive provisions in the Constitution. The Board was to vet in order to determine the suitability of all Judges and Magistrates who were in office on the effective date who would then continue to serve in accordance with the values and principles set out in Articles 10 and 159 of the Constitution.
The learned counsels for the respondent further argued that the Board acted in contravention of the Bill of Rights as contained in Chapter Four of the 2010 Constitution. Mr. Oduol cited an instance where a judge was accused of having presided over torture of accused persons during the 1982 coup military tribunals and yet this Judge was not a member of a court martial.
The Board was also faulted for having actually found some two judges to be unsuitable yet the same two judges were given accolades by the Judicial Service Commission (JSC) when they appeared for 'vetting' during interviews for higher positions. With tremendous respect to counsel, this does not necessarily mean that the JSC was right and the Board was wrong. But supposing, as asked by Mr. Kanjama in the course of his submissions, all Judges and Magistrates had been sent home packing as initially proposed, would anyone have argued that their fundamental rights were violated? My position in this is that Article 1(1) of the Constitution provides that all sovereign power belongs to the people of Kenya and shall be exercised in accordance with the Constitution. Article 2(3) states that the validity or legality of the Constitution is not subject to challenge by or before any court or other state organs, whilst
Article 3 obligates every person to respect, uphold and defend the Constitution. The inclusion of Section 23(2) in the Constitution is an exercise of the people's constituent power and by dint of Article 2(3) of the Constitution, its validity or legality is not to be challenged.
It is also instructive to note that H.C. Eldoret Constitutional Petition No. 11 of 2012 together with J.R. Application No. 295 of 2012, Constitutional Petitions Nos. 433, 434 and 438 of 2013 were filed after the Board had made determinations in respect of the respective Judges and had found them unsuitable to serve. No complaint had hitherto been made against the Board for violation of fundamental rights. It would appear that the various respondents were in effect challenging the determinations of the Board, under the guise of infringement of their fundamental rights. The challenging of the determinations made by the Board flies in the face of the clear and unambiguous provisions of Section 23(2) that insulated the determinations of the Board. The ouster clause in Section 23(2) that is
“23(2) A removal, or process leading to the removal, of a judge, from office by virtue of the operation of legislation contemplated under sub- section (1) shall not be subject to question in, or review by, any court.”
bears a plain and ordinary meaning.
Besides it is a cardinal principal of law that one cannot be a judge in his own cause. If the vetting process had not been insulated from the supervision of the High Court, then there would have been clear issues of conflict of interest. In my view this would not have helped in restoring the confidence that the Judiciary so badly needed. In the case of R v. Gough, [1993] 2
All CR 724, Lord Goff had this to say:
“Justice must be rooted in confidence, and confidence is destroyed when
right-minded people go away thinking 'the judge was biased'.
In the case of Metropolitan Properties v. Lannor, Lord Denning had this to say:
“In considering whether there was a real likelihood of bias ... the Court looks at the impression which would be given to other people ... What right minded persons would think.”
In the absence of insulation of the Board, judges would have had to decide on matters affecting their own.
There was one more issue. The Respondents counsels submitted that case law from other commonwealth jurisdictions had held that even in situations where ouster clauses were provided
for, the jurisdiction of the High Court was not ousted. They cited the case of Anisminic vs
Foreign Compensation [1969] 2 AC 147 (HL) as a leading authority. However, what counsels
for the respondents did not tell the court was that Anisminic dealt with a statutory ouster clause. The ouster clause in Section 23(3) of the 6th Schedule is a Constitutional Clause ousting the jurisdiction of the High Court, as opposed to a statutory clause.
Besides, as argued by Mr. Kanjama, Mr. Njoroge and Mr. Nderitu, the Vetting Board was a sui generis tribunal. It is a special tribunal provided for in a Constitution ushered in after a referendum. The Vetting Board was a special tribunal set up to specifically deal with a unique situation and during a specific period of time in our history. It cannot be equated to an administrative body whose operations are questioned inspite of ouster clauses. To this extent, I am in agreement with the appellant's counsel that the decisions from other commonwealth jurisdictions on the ouster clauses are distinguishable form the ouster clause in Section 23(2) of
the 6th Schedule, due to the sui generis nature and character of the Board as underpinned by its unique purpose and import.
It would also appear that case law from these other commonwealth jurisdictions does not deal a fatal blow on constitutional ouster clauses.
In the case of Jones v. Solomon, Civil Appeal No. 85 of 1986, the Court of Appeal of
Trinidad and Tobago held thus -
“Where a court is called upon to deal with the effect of an ouster clause contained in a Constitution, ... it must so interpret the ouster clause that the supremacy of the Constitution is preserved.”
In Harrikison v. Attorney General of Trinidad and Tobago Civil Appeal No. 59 of 175,
Hyatali CJ stated
“I am firmly of the opinion that a court would be acting improperly if a perfectly clear ouster provision in the Constitution of a country which is its supreme law is treated with little sympathy or scant respect, or is ignored without strong and compelling reasons.”
The strong and compelling reasons would be in situations where a tribunal does something that it outlandish, such as the examples given by Mr. Nderitu of a Board vetting a Doctor as opposed to a Judge or the other example given by Mr. Oduol of a Board sentencing a judge to hang after a vetting process!
For all the foregoing reasons, I find that the High Court is not seized of a supervisory jurisdiction over the Judges and Magistrates Vetting Board and I would allow the appeal, but as the majority are of a contrary opinion, the appeal is dismissed in accordance with the order of Kiage, JA. As for the costs, I propose that each of the parties herein bears its own costs.
Dated and delivered at Nairobi this 18th day of October, 2013.
F. SICHALE
...................................
JUDGE OF APPEAL
I certify that this is a
true copy of the original. DEPUTY REGISTRAR