57.
In relation to the first reason, the Complainant refers to the "Judges and
Magistrates Vetting Board Determinations Concerning the Judges of the
Court of Appeal" submitted as an annex to his submissions. In this
document, the Vetting Board recognized that" corruption remains one of
the greatest challenges to the judiciary" and also stated that: a series of
1/
complaints in this regard were made by an Advocate - whom I shall not name for
reasons of confidentialitu. The judges' response though dealt adequately with the
complaints. Some of the complaints were even sent to the United Nations, the
International Criminal Court and other bodies. Clearly there has been a complete
breakdown of trust and professional respect between the Advocate concerned and
the judiciaru, with negative results all round. The situation calls for intervention
by the Law Societl) of Kenya with a view to achieving an appropriate remedy"15.
58.
In another part of its report, the Vetting and Magistrates Board found that:
" Complaints were received from an Advocate that the judge acted in a
discriminatonj way against the complainant ... the board found that although the
situation is manifestly unsaiisfactorf, for the purposes of the Vetting process the
judge'S responses were adequate. The Board noted that the same Advocate had laid
complaints against even) judge in the Court of Appeal, all basically to the effect that
they were unfairly hostile to him and discriminated against him ... "
59.
From the evidence presented, the Commission is able to make two
observations, the first of which is that corruption was indeed recognized as
a challenge to the integrity of the judiciary, and the second of which is that
the evidence provided does not however lead to a conclusion that the
decision of the Vetting Board is I' an express and unequivocal official public
admission ... that local judicial remedies are either unavailable, insufficient or are
not effectively accessible" as put forward by the Complainant.
60.
InAnuak Justice Council v Ethiopia'», the Complainant in that case argued
that domestic remedies were unavailable and ineffective due to the lack of
independence of the judiciary, which is often subject to unlawful
interference from the State. The Complainant supported this argument by
referencing a report from the World Bank, which stated that the judiciary of
Ethiopia required "significant strengthening to obtain true inde
". In
its decision however, the Commission reasoned that flit is ,~~~~
e .
complainant to cast aspersion on the abilitt) of the domestic I .1)£ed'iiJ,oj..1l:i(Sta-e
due to isolated or past incidences" and that it was ~ J s fficient f~r a~ .
{)eo
complainant to merely argue that domestic remedies arJ ':! ~. ely,tC!l
st.cc~~.:.~\
without having made an attempt to pursue them.
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15 The Vetting
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of Judges & Magistrates Board, page 2.
299/05 - Anuak Justice Council v Ethiopia (2006) ACHPR, para 36.
16 Communication
13