Another reason why we need a new Chief Justice.
Thursday, September 30, 2010
Another reason why we need a new Chief Justice.
Wednesday, September 29, 2010
Tuesday, September 28, 2010
Monday, September 27, 2010
Sunday, September 26, 2010
Friday, September 24, 2010
I do not think that the Court has taken advantage of the information technology to ease it work. My experience with the judiciary means that when we talk about IT, this means that we can now do word processing! I haven't seen any material change that would make me excited. For a court of its size, stenography has not been adopted. Notes are taken in long hand and I know most judges write their decisions long hand and have their secretaries type.
And how can I forget this crappy website!
Wednesday, September 22, 2010
(2) Disputes shall be referred to the Board in the first instance and where necessary an arbitration panel shall be appointed by the Minister who shall consider and determine the matter before the same is referred to court.
(3) Subject to this Act, no person in the management of the Fund shall be held personally liable for any lawful action taken in his official capacity or for any disputes against the Fund.
Tuesday, September 21, 2010
Sunday, September 19, 2010
I came across this article on how to become a High Court Judge in Kenya. I hope that this is now a matter for history. The Consitution and the proposed Judicial Service Commission Bill ensure that a more transparent process is adopted.
On a separate note, the Supreme Court of the United Kingdom commenced its work in October 2009 and is now celebrating it first legal year. This interview given by the only female member of the court, Baroness Brenda Hale provides an insight into the work of that court.
Friday, September 17, 2010
One of the hallmarks of a good Chief Justice his ability to provide intellectual and jurisprudential leadership on the legal issues of the day. At the time of Kitili Mwendwa's appointment, the Court of Appeal for East Africa had Sir Charles Newbold as its President, Uganda had Sir Udo Udoma and Tanzania had Telford Georges as Chief Justices.
Unfortunately, Chief Justice Kitili Mwendwa was the Chief Justice for such a short time that it would be difficult to properly gauge his intellectual qualities in this respect. Further, the primary sources of material readily available are the East Africa Law Reports that contain important decisions. At this time the East Africa Law Reports covered the cases from the three East African Countries plus the Court of Appeal for East Africa. Since the latter Court was the highest court, its decisions were naturally of greater precedential value. It must also be remembered that the Chief Justice, nominally a member of that court, normally sat as a member of the High Court. Thus, most of the reported cases decided by Chief Justice Mwendwa are criminal cases in matter he presided while sitting as judge of the High Court of Kenya. There is one case though that marks out the jurisprudence of Chief Justice Kitili Mwendwa. Republic vs El Mann  EA 357.
The facts of Republic vs El Mann were simple and straightforward. The applicant, in the case, was charged before a resident magistrate with contravention of the Exchange Control Act. He made a reference to the High Court challenging the constitutional validity of a provision of that Act which allowed the prosecution to produce in evidence against an accused person answers given by him in a mandatory questionnaire. The case revolved around the meaning and interpretation of section 27 (1) of the Constitution which provided, “ No person who is tried for a criminal offence shall be compelled to give evidence at his trial.” The court has two choices to make. It could adopt a narrow interpretation that would limit the compulsion to the trial itself or it would take a more expansive view that the compulsion included acts prior to the trial in order to give the legal protection full meaning and effect. In the case, the court held that, “the Constitution is to be construed in the same way as any other legislative enactment and that is, where the words used are precise and unambiguous they are to be construed in their ordinary sense.”
This decision has been much maligned here, here, here and here and in fact led to a situation where the Constitution of Kenya and Bill of Rights were rendered almost ineffective during the Kenyatta and Nyayo era. Happily, this decision has now been consigned to the dustbins of legal history.
So much for the legacy of the first African Chief Justice.
The point I am making is that the Minister for Education should be more circumspect in implying that some university degree's useless. They may be more popular but certainly not useless. Universities not only exist to train people for jobs but also to disseminate knowledge. After all why do some universities still teach Latin and ancient Greek which are dead languages. Knowledge of whatever nature can be leveraged into appropriate skills and it is up to the individual to decide what they want do with the knowledge they have acquired.
The challenge for GoK is to create an environment where opportunities can be found for the so-called "useless degrees." As our society becomes more complex, we shall require application knowledge to deal with specific problems and issues. For example, consider that the present Constitution obliges the state to achieve and maintain at least 10% tree cover of the land area in Kenya. Shouldn't this present an opportunity to invest in courses like forestry and wood science technology? If It is also important for students and employers to realise that a degree in a specific course does not necessarily tie one to a specific job set. One of the problems that needs to be addressed, is career advise to prospective students who tend to be motivated more by the popularity of the course rather than the content.
Wednesday, September 15, 2010
I did not read stories of Kitili Mwendwa’s death as I had this feeling of “move along, nothing to see here.” In Kenya we have this fixation on how people die, must have been foul play kind of stuff. No, I am not in any way diminishing the importance of story or the way death affects family and friends or the fact that suspicious deaths must be resolved. A story such a this, presents an opportunity for us to evaluate the position of the Chief Justice from the effectiveness and performance of the holder otherwise why would we be obsessed about his death! In this regard, the Nation failed Kenyans.
The Constitution now provides, that the current holder shall vacate the office within six months after the effective date. What we now need is a discussion about what kind of Chief Justice we would like to have leading the Judicial Transformation Project. I have thought that the Nation, with its substantial resources, would lead this discussion by telling us about the First African Chief Justice. I have now read the articles and what a disappointment!
Consider this, at the time of his appointment, the High Court comprised left over colonial judges. In 1968, the High Court had eleven judges; Farell, Wicks, Madan, Dalton, Trevelyan, Chanan Singh, Miller, Harris, Mosdell, Simpson and Bennet. Apart from the European judges, Justices Chanan Singh and Madan both had distinguished legal and political careers particularly having participated fully in the independence struggle. In my view, they would have been the likely candidates for appointment. The question one would ask is, why would H E Jomo Kenyatta, appoint his young Solicitor General, without judicial experience, to be the Chief Justice?
Apart from speculation about the cause of his death, the Nation story, in so far as it concerns the man himself, is rather inane and vapid. Nothing is said about his depth and breadth of his legal and intellectual capabilities, his legal experiences, his contributions to the struggle for independence, the cases his did during his time in legal practise and his achievements as the Solicitor General and Chief Justice during the formative years of Kenya. In summary, this is what the Nation tells us about the late Chief Justice;
- He was born an aristocrat, his father having been a paramount chief.
- He lived an early life of a shrewd businessman, operating a bus service company even when he was Chief Justice.
- He had a taste for checked suits and blazers complete with bow ties to match. He chose well his associates, who included Presidents and rich businessmen. But he would also be found in lowly places mixing with common people.
- A lawyer who was in practice recalls that even during court proceedings, he would listen to evidence without recording it, much to the detriment of possible appeals which require scrutiny of recorded evidence.
- He was extremely intelligent man who was a student history and had a passion for cars.
The most important quote the writer could solicit from Charles Njonjo, who could have provided an insight to how and why Hon Kitili was appointed the Chief Justice, stated, “He was an eccentric man who loved old cars and drove at high speed.”
Frankly, I am left thirsting for more! So when our children and their children do their online research on the person that was Kenya's first African Chief Justice, this is the story they get.
UPDATE. Contrast this with the full treatment given to Lord Bingham whom I consider one of my legal greats.
From a human rights point of view, the right to bail springs from the presumption of innocence. Further, it is the burden of the state to demonstrate, that accused is not entitled to bail. The High Court in R vs Victor Odeougu & Another had occasion to state;
“Unless it can be shown that an accused person will be tried within a reasonable time, if he is facing any offence not punishable by death, then he is entitled to bail as a matter of law (the law ere being Section 72(5) of the constitution), and the courts (subordinate or the High court) have no discretion in the matter. The only discretion given to the court under the said provision of the Constitution is as to whether the accused should be released unconditionally or conditionally.”I was up country yesterday and the big story there was about this guy who had killed his neighbour. The villager were horrified that he successfully applied for and was released on bail. His sister provided the cash bail and stood as a surety. The villagers were of not happy because "the murderer" is back in their midst. The accused and his sister, now considered a co-conspirator, have now gone underground and the accused's family is living in perpetual fear. Everyone I spoke to believed that he should not have been released on bail. My efforts to explain the provisions of the Constitution and what it means bore no fruit. Their conclusion was that the law, in this case, is an ass!
A mzee explained to me that in the old days, someone who killed another was banished from the locality. There was no death penalty back then and if you took away someone's life, you did not expect to live within and receive the protection and comfort of the community.
Monday, September 13, 2010
Similarly, the Vetting of Judges and Magistrates Bill, 2010 approved by the Cabinet last week materially differs from the one circulated earlier in that it has removed the provisions for nominations of members of the Vetting Board by various civil society organisations. The Public Service Commission will constitute a Committee comprising representatives from the Cabinet Office, Office of the Prime Minister, Ministry of Justice, National Cohesion and Constitutional Affairs, State Law Office, Ministry of State for Public Service and the Public Service Commission. This Committee will consider the applications and present a shortlist to the President and Prime Minister and who will make the recommendation for the approval by Parliament.
The principal objection in respect of the Public Service Commission nominating members of the Implementation Commission is that since it is the same old PSC that is charged with nominating, it may beholden or controlled by the executive and may narrow the scope of nominees to those friendly to the political regime. There is no doubt that the Committee established to consider applications for the Vetting of Judges and Magistrates Board is clearly an internal government affair.
My view is that it is not inconsistent with the presidential system, as espoused by Hon. Mutula, for the process to be opened up for full public participation by all sections of the society, after all the end is the nomination by the President. Indeed, public participation is now a recognsied public value. It is also important, that process is not seen as an internal Government process controlled by the political elites. By virtue of section 250 of the Constitution, the National Assembly divested itself of the authority to make any appointments to Commission established under the law. It role is limited to approval of nomination duly made.
The issue of devolved government must be clearly thought out and examined to make it a success. On one hand, we must avoid the the scenario where the national government suffocates the devolved units to the extent that they collapse like the deliberate efforts that killed the majimbo system established at independence. On the other, we must remember that we are all part of the Kenyan state and the national government must have some presence in every part of the country. The form and substance of that presence is up for debate and the remarks of people like Otieno Kajwang' do not advance the discussion.
Friday, September 10, 2010
Wednesday, September 08, 2010
The Judiciary was cut loose long time ago and lost any ability to influence the direction and fate of the transformation any material way. Basically, the issue has been left to the lawyers to deal with and GoK would be happy to go along with process whatever the outcome. The office of the Chief Justice will be vacant less than 6 months from now and the Supreme Court should be up and running within that time frame. Apart from the trial balloons that went up a few weeks ago as to the likely candidates, I am yet to see any serious candidates emerging. The consensus emerging is that the Chief Justice and the Judges of the Supreme Court should be from outside the present judiciary to give the process some credibility.
Monday, September 06, 2010
Sunday, September 05, 2010
Thursday, September 02, 2010
Wednesday, September 01, 2010