Revenue Collection Courts

The Judiciary is a revenue source for the Government of Kenya.  The issue of revenue collection at the Judiciary has always been a sensitive hush hush kind of subject.  In criminal cases  money is collected through fines levied on convicted criminals and in civil cases through court filing and other fees.  Over the years there has been concern over the loss of revenue at the Judiciary through outright theft,  printing of fake receipts, non receipting, under assessment of fees and diversion of cheques. 

Normally, when one wants to file a document, it is presented at the registry where the document is assessed by endorsing the amount payable thereon.    Obviously, some advocates and litigant collude with executive officers to under assess filing fees.  So say the claim is for Kshs. 200,000/- and the fee assessed was Kshs. 20,000/-, the amount assessed would be Kshs. 15,000/-.  Good guess where the difference goes. Under assessment may also be the by mistake or ignorance of the provision under which the fee is assessed. Payment is then made to the cashier and a receipt issued. 

 

Court filing fees are determined by the Chief Justice in accordance with specific legislation.  Section 10 of the Judicature Act (Chapter 3 of the Laws of Kenya) empowers the Chief Justice generally to make rules of procedure and prescribe fees for the High Court and Subordinate Court.   While the Chief Justice gazettes fees from time to time very few people including judicial officers have access to the Kenya Gazette.  Hence, it is not surprising that assessment of fees may differ from station to station depending on whether the officer has access to the latest publication.  I recall a booklet published in 1991 by a Deputy Registrar, now retired, Karanja Kinyanjui, titled “Guide to Assessment of Court Fees” which set out court fees charged by the court for various services.   I believe it is now out of date and out of print.  There is no single reference point for the determination of court fees.  

As the judiciary website states  assessment and collection of court fees deposits and fines is one of the functions of the registry. It is not stated how these fees, deposits and fines were collected.   When I was admitted 10 years ago, payments to could be made by cash or cheque.  Personal cheques by advocates were stopped as many advocates bounced cheques to the judiciary.   A directive was then issued that payments over Kshs. 3,000/- be made by bankers cheque only.  The additional cost of purchasing the cheque was borne by the client. This was discontinued I suspect because some people began diverting banker’s cheques.  The system now in place is that any payment of fees over Kshs. 1,500/- is made by a direct bank deposit in an Judiciary account at Kenya Commercial Bank.   Assessment of fees is  still made  at the registry before payment is made at the bank.   The deposit slip is then presented to the cashier at the registry and a receipt for the amount issued.  That receipt has never changed, it has no security features and can be printed by any run of the mill back street printer.

This area has been immune from technology changes.   Am sure software exists that can integrate all these functions. Oh and how can I forget to the judge who keep adjourning matters because court fees have been under assessed!

Another reason why we need a new Chief Justice.

Landmark ruling?

Justice Warsame

I have just read the ruling by Justice Warsame delivered yesterday in the case of Mohamed Aktar Kana vs the AG (Constitutional Application No. 544 of 2010).    What I should make clear is that the ruling is a preliminary or interlocutory decision on whether the state should be restrained from transferring the applicant to  Uganda pending the full hearing and determination of the application.    It is not a final decision on the issue of rendition and extradition or an interpretation on the Bill of Rights as concerns the two issues.  It should be noted that at this stage, the application  is heard ex-parte and the state’s position was not presented for consideration.  The duty of the judge, at this stage of the proceedings, is to satisfy himself that there is a substantial issue for argument or that the application is not merely frivolous and that the harm that would result by not giving the interim relief is so grave as to require court intervention before hearing the respondent in this case the state.  

The case has elicited strong responses from my learned friends.  As international Criminal law is not my forte so I’ll be content to quote some of my colleagues (edited for clarity).

“Whereas extradition is an action grounded in international criminal law and anchored on statute Extradition (Contiguous and Foreign Countries) Act, (Chapter 76 Laws of Kenya) and the Extradition (Commonwealth Countries) Act (Chapter 77 Laws of Kenya), rendition is purely a security operation whose aim is to avail the suspect for purposes of extracting information from her or him, information of which may or may not be sufficient to sustain a prosecution. The purpose of extradition on the other hand is bringing a suspect to trial or to enforce a sentence earlier imposed. The latter necessarily entails possession of cogent evidence on which a charge is capable of being founded. In this sense therefore, there was no due process required by law to be followed apart from the minimal guarantees of human rights which the suspects actually enjoyed.”

On whether the decision can be termed as a landmark ruling;

"…..   I can live with it if it is referred to as an “Alleged Landmark Ruling” if we must call it landmark. I strongly believe that a landmark ruling does not just apply to the nature of the topic but to the quality of the ruling itself. A shoddy ruling cannot be a landmark ruling even though it addresses a new legal frontier …….. I am not advocating for jargon a la Lord Denning, simplified decisions do not mean lack of substance. A decision can be simple without being simplistic, it can be precise without being mediocre, it can be concise without being shallow.......Let him be simple but it is also imperative that in his simplicity his ruling must meet the basic requirements of a sound ruling. Not every ruling on a 'hot topic' should be declared a landmark ruling, that ruling should be a quality ruling..a ruling that can be cited in a law class, a ruling that can form the basis of a judicial precedence...as it is Warsame's ruling can only be referred to as " A ruling on a landmark case" not "a landmark ruling" as the LSK is insinuating."

  

“ ….. the ruling is a sham. Where did he address the real issue of whether the proper procedure is being followed for extraditions? Do extraditions violate the Constitution if the proper procedure as per the bi-lateral treaty and the domestic law is followed? Landmark ruling my foot.”

In my view, the decision is not a landmark decision as it adds nothing new to our jurisprudence.   The judge was merely exercising his power to conserve the status quo regarding the applicant pending hearing of the application  between the parties.   The Judge should have been temperate in his remarks particularly having regard to the fact that the application was being heard ex-parte and that the State had not presented its version of facts.   To imply that the institution of the President lacks understanding of the Constitution and that the security organs of the state have failed to appreciate the supreme law is a very serious accusation that must not be given judicial imprimatur lightly.    I think the judge was a flippant in his use of language and as counsel for the state I would ask him to disqualify himself from the matter.

Banal Exchanges

Today's Nation editorial, "Drop banal exchanges" is to the point.  The war of words between the judiciary and the legal profession does not advance the cause of the Judicial Transformation Project.  There is too much focus on unknown specific personalities without regard to the kind of people we wish to join the bench.  Other than  focusing on personalities, the greater debate should be defining  the role of the Judiciary within the Constitutional order. The Judiciary occupies a position that will definitely define the contours of reform for years to come.  Issues relating to the Bill of Rights, the balance of power between the National Assembly and the Senate, the National Government and Counties will definitively be settled by the courts.   This is not to say that personalities are not important.   One of the early Chief Justices of the United States  John Marshall, played a very important role of the  establishing the balance of power between the various arms and organs of state provided in the  Constitution that has survived to date.  We should have a substantive and in depth examination of the people who would occupy high judicial office.  I for one will be making my contribution by suggesting names in the coming months.

NHIF, COTU and FKE

The Industrial Court dismissed the case filed by COTU seeking to stop the implementation of the new NHIF rates.   FKE and COTU have now indicated that they intend to challenge the decision in the High Court.  I just heard the COTU SG threaten a general strike unless government intervenes to stop the rate raises.  Apart from the legal issues raised, I think the case raises important issues on how we intend to build our institutions, a point I alluded to in my last post.   The NHIF is a statutory body incorporated under the NHIF Act.   The Board is established under section 4 and  provides as follows;

 

4. (1) There shall be established a Board to be known as the National Hospital Insurance Fund Board of Management which shall consist of: -

(a) a chairman to be appointed by the President by virtue of his knowledge and experience in matters relating to insurance, financial management, economics, health or business administration;

(b) the Permanent Secretary in the Ministry for the time being responsible for matters relating to health or his representative;

(c) the Permanent Secretary to the Treasury or his representative;

(d) the Permanent Secretary/Director of Personnel Management or his representative; the Director of Medical Services;

(f) one person nominated by the Federation of Kenya Employers;

(g) one person nominated by the Central Organisation of Trade Unions;

(h) one person nominated by the Kenya National Union of Teachers;

(i) one person nominated by the Kenya National Farmers Union;

(j) two members appointed by the Minister as follows -

(i) one person nominated by the Association of Kenya Insurers;

(ii) one person nominated by non-profit making health-care providers;

(k) the chairman of the Kenya Medical Association; and

(l) one member representing non-governmental organisations involved in the provision of health care services, nominated by the Non-Governmental Organizations Council established under the Non-Governmental Organisations Co-ordination Act, 1990.

(2) For purposes of subsection (1) "non-profit making health-care providers" means hospitals managed on a charitable basis by religious organisations.

So where were COTU and FKE when the decision to raise rates was being made?    Is the law suit an excuse for their failure to take part in a process they are legally entitled to participarte? Both COTU (and two other Unions) and FKE are fully represented on the Fund Board and one would expect that before the rate changes were announced, the matters were discussed exhaustively by the Board.   The purpose of having various interest groups represented on the Board is so that specific consideration is given to those special interests.  In other words, the Board has an in built consultative process.   If the COTU or FKE representative fails to present its position on the Board, then COTU and FKE must take responsibility for nominating members to the Board who either do not inform the nominating body of the proposals made for consideration or simply do not participate in the decision making process.  On the hand, given the nature of interests represented, decisions made by the Board  will normally take into account competing interests so that  the end result must may not satisfy all parties.  No party will have an unqualified acceptance of its position.  FKE and COTU should work to  strengthen the institutional capacity of NHIF to make decisions that move the dream of healthcare for all forward.  It is the responsibility of FKE and COTU ensure that NHIF has the capacity to deal with difficult issues within the contraints of existing institutions.  I am afraid that the Courts cannot be a substitute for the hard decisions that need to be made from time to time.

Sunday Miscellany

I listened to Mike "I'm not as wealthy as people think" Sonko giving an interview yesterday on Citizen TV.   He said that he had about Kshs.  800 million through donations from abroad to the Mike Sonko Foundation which he will use as a vehicle for development projects in his constituency.  Now I have no problem with people giving money to development projects, alleviating poverty and throwing their money at vanity causes.   I have a problem with people with money assuming political positions and using their money displace government.  Rather than insisting that the Government, through it various instrumentalities provide the services its has undertaken to provide, the Member of Parliament is now seen as a substitute for the government.  If money is not taken out of politics, we run the risk of having our  politics being a preserve of those with money.   Inevitably money in politics undermines our institutions and democracy itself.  I hope the election law will deal with issue of money and transparency in politics.  In the meantime, I hope KRA is listening!

Teleconferencing in the Court of Appeal

Sometimes we worry about big complex things, when we can improve our situation by doing small practical things.  I have not seen the teleconferencing facilities yet and I doubt that this  would make any difference.

I was at the Court of Appeal early this week for the hearing of an application I filed under certificate of urgency in July.   The High Court granted an mandatory injunction against my client on 23rd July.  I filed my application for stay on 1st July.  It was certified as urgent on 14th July and fixed for hearing in September .   During this time, my client, under the threat of contempt proceedings, had to comply with the order despite the order being injurious to its business.  When the matter came up, I had to withdraw the application as it had been overtaken by events and the hearing would serve no purpose.  For the judges, this was one application disposed off without having to listen to arguments and write a ruling.   Now I have an angry client, who has been  effectively denied the right of appeal yet he has to pay my fees and the costs of filing the application and appeal.  So much for justice.   I wonder if teleconferencing would assist my client.

As we sat waiting to for the judges, our discussion turned to how the standards in the Court of Appeal have continued to decline over the years.  The Court rarely keeps time.  Chalk this up to the big guy who comes to work at 11.00am and leaves at 3.00pm.    Anecdotal evidence suggests that the Court of Appeal is not disposing of matter with speed and efficiency.   It  is now dealing with 2003/2004 civil appeals.  The Court does not provide statistics for the work it does. 

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.    

Before the Court commenced, the clerk handed us fullscap paper, nicely typed with a manual type writer for us to fill in our names.  Finally, the judges came in at 10 am and apologised for their lateness.  This could have been 1970!

And how can I forget this crappy website!

Do Advocates prepare for cases?

Last week, in a story titled, "Finish Project or go to jail, MP told" the Nation reported that a magistrate had ordered the MP for Ol Kalou, Hon. Erastus Mureithi to speed up implementation of the projects commenced by his predecessor, Muriuki Karue or face jail time.   Judging from the comments on the story, the public must have been happy with such a precedent setting decision.  Njamba blogged  said that this what the judges should be doing slapping these law breakers with penalties to teach them the rule of law.   

It appears that some aspiring politicians sued the MP to stop him from interfering with some dispensary project initiated by his predecessor.    He  has apparently stopped a cheque issued by the CDF Committee on the ground of embezzlement.  During the proceedings the magistrate is reported to have remarked, " The MP is absent without apology. He is rude, disrespectful and openly defied my orders that were served on him. This lawmaker turned lawbreaker shall stand condemned to pay costs of the suit or have his property attached to meet the same."  So was this a final judgment or merely an order made to enforce the MP's attendance?

Anyway, the point I wish to make is that if the magistrate and the advocates appearing before her had bothered to read their law, it would have been abundantly clear that the proceedings were a waste of judicial time.  Matters concerning the CDF are governed by the Constituency Development Fund Act  which at section 52 provides as follows;

52. (1) All complaints shall be forwarded to the Board.
(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.

Any lawyer worth his salt knows or as we say, it is trite law,  that when parliament provides a specific procedure for resolution of a dispute that procedure  must be followed.   In this case the magistrate had no jurisdiction to entertain the complaint before her  as the Act is clear on the procedure to be followed and any dispute ought to be referred to the Board for further action in accordance with the Act.   Secondly, the MP could not be held personally liable for any dispute against the Fund.   

Evidently, both lawyers failed their clients and the public in leading them to believe that they had a remedy in court.  This is the kind of case the validates the complaint that lawyers no longer read or prepare for their cases.  I would expect that  when one is briefed on a CDF case, the first port of call would be the CDF Act. 

When Mr Mureithi returns from Nigeria he must apply to set aside the orders of the court against him.  I would gladly represent him!

What about Chief Justice Chesoni?

Like Kitili Mwendwa, Zaccheus Chesoni is today remembered for the manner in which he died rather than his contribution to matters legal.  It is no surprise that the wikipedia entry of Chief Justice Zaccheus Chesoni reads as follows;  "Zacchaeus Chesoni (born - died September 5, 1999) was Chief Justice of Kenya and chairman of the Electoral Commission. Chesoni hails from the Kabras sub tribe Bamachina clan close to Chimoi area around Webuye."

That Chesoni was a politically wired guy is not in doubt.   He was appointed as a High Court Judge in 1974 and an acting Court of Appeal Judge in 1983.   The circumstances of his departure have never been officially disclosed.   At the time, it was reported that he was heavily indebted and as a result of  a successful court case against him, he was dismissed.  He was appointed a Court of Appeal Judge on 19th February 1990 and then left 25th May  1990 due to his inability to resolve those financial issues.    

During his  judicial interregnum he was appointed Chairman of a Commission of Inquiry on Mwea Trust Land.  The report of this obscure Commission is yet to be released to the pubic.   Justice Chesoni had the fortune of being appointed Chairman of the Electoral Commission of Kenya in 1992 by H E Daniel arap Moi.   His brief was to set up the newly established ECK and carry out the first multiparty election.   His  perceived  brief was to protect KANU interests and ensure that Moi won the ensuing election. In fact,  Odinga Oginga, Mwai Kibaki, Johnstone Makau and Mukaru Nganga , the opposition presidential candidates of the day, filed a suit  for a declaration that Chesoni was unfit to hold office but the suit was dismissed on the ground that the applicants had no locus standi. [See Odinga & 3 Others vs Chesoni & Another (2008) 1 KLR EP 432.]

Four weeks shy  of the General Elections of 29th December 1997, Justice Chesoni was appointed the Chief Justice to replace Justice Abdul Majid Cockar.  His appointment shocked many Kenyans as he had earlier left the Judiciary in disgrace.   Many argued, that  the lack of independence displayed while at the helm of  ECK,  did not augur well for the independence of the judiciary.  

I suspect that as a result of his rather unsavory past, Justice Chesoni, in a politically astute move, sought to acquit himself in the eyes of the public.   He set the ball rolling when, on 7th January 1998, he set up the Committee on the Administration of Justice headed by Justice Kwach.    Such a Committee of self examination was unprecedented.  When appointing the Committee, the late Chief Justice "stressed the need for the Judiciary to inspire confidence in the Kenyan public, who have perceived it with fear and suspicion ; that the necessary steps need to be taken to improve the image and performance of the judiciary in the administration of justice."  The Committee came up with  wide ranging recommendations.  Alas!!  Justice Chesoni did not live to see the implementation of the report. 

Sunday Miscellany

The approach taken by the LSK, FIDA and ICJ is interesting. Instead of proposing suitable candidates for high judicial office, they have decided to prepare a list of persons who should not be considered for the position of Chief Justice. There is intense lobbying for this position not only by and on behalf of qualified persons but also by some characters who should not be allowed to hold any position of responsibility. Rather than adopt a negative or exclusionary approach, I think the proper role of these organisations is to highlight the kind of attributes that they would like a Chief Justice to have and then propose suitable candidates who meet the criteria. The public has the right to know and discuss the persons who may be considered for appointment to high judicial office. In the past praise and consideration by the civil society was enough to sink a presidential nomination but the new constitutional dispensation requires transparency, accountability and public participation.

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.

Legacy of Chief Justice Mwendwa

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 [1969] 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.

Is my Degree Useless?

I had been practicing law for sometime before I left the country to do a Master Degree in Law in some rather obscure subject. Most of my colleagues were of the view I was wasting my time and money because a Masters Degree, particularly of the kind I was going to pursue, was not useful to an advocate in private practice. In other words, "the degree was useless." I graduated and came back to active practice and indeed, if I stuck to the same routine, the degree would have made no sense to me. However, I came to the conclusion that the knowledge I had acquired had to work for me. And I can now state that through my masters degree, I gained knowledge that helped me obtain new skills to attract the kind of assignments that would not otherwise be available.


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.

Kitili Mwendwa; the First African Chief Justice

Kitili Mwendwa being sworn in as Chief Justice courtesy of the Nation

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;

1. He was born an aristocrat, his father having been a paramount chief.
2. He lived an early life of a shrewd businessman, operating a bus service company even when he was Chief Justice.
3. 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.
4. 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.
5. 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.

Bail in Capital Offences

Under the old Constitution, capital offences were not bailable. The constitutional amendment to remove bail from bailable offences came after the High Court held, in the case of Margaret Magiri Ngui vs R, that the provision of the Criminal Procedure Court prohibiting the granting of bail in capital offences was unconstitutional. So if you were charged with Treason, Murder and Robbery with violence there was no expectation of bail.

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.

Applications, Nomination, Approval and Appointment

According to the Memorandum of Objects and Reasons set in the The Commission for the Implementation of the Constitution Bill, 2o1o, Hon Mutula Kilonzo states, "The Constitution establishes a presidential system of Government. In such models, appointment to key offices originates from the Executive. Under Article 250 of the role of parliament is to approve the person nominated by the Executive." As a result of this reasoning, it is the Public Service Commission, as presently constituted, that will consider the applicants and present the shortlist to the President who shall, in consultation with the Prime Minister, nominate persons duly qualified for approval by Parliament.

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 Provincial Administration

Section 17 of the Sixth Schedule of the Constitution provides that within five years after the effective date, the national government shall restructure the system of administration commonly known as the provincial administration to accord with and respect the system of devolved government established under the Constitution. So all those of you with vapors over the the PC's, DC's, DO's and Chiefs, take a deep breath. First, we have five years to restructure. the provincial administration. Second, until such time that the system is restructured, the Government must continue to carry on its duties. Third, the five years gives us the opportunity to experiment with various models of government. Last, the restructured system must accord with and respect the system of devolved government.

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.

My Friday ...

I expected today to be rather laid back until my friend called and asked me to assist his client take a plea for some minor offence. I proceeded to court and found 28 Indian girls plus some guys charged with some immigration offences involving singing cum dancing sans employment permit. So as the criminal procedure goes, the charges were read out to each of the accused, translated and the plea taken from the accused. What surprised me is the number of foreigners charged for being in Kenya illegally while seeking economic solace; Indians, Pakistani's Iranian's ... I suppose there is a money to be made dancing and singing in certain nameless establishments in the western suburbs of Nairobi.

The Politics of Vetting Judges and Magistrates

Generally speaking I get the feeling that, the Government, that is, the politically loud types, are not heavily invested in the Judicial Transformation project like they are on the issues of political power, succession, the size of counties and constituencies and resource sharing. The media, on the other hand, is more focused on stuff like PC, DC's and stirring the politics of 2012 pot.

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.

Legal Changaa

I am sure most Kenyans, at least those who consume unregulated liquor in unlicensed places will be disappointed, when the new Act takes effect. The regulatory hoops and huge fines will be a bonanza to corrupt administrators. Regulations of the kind proposed will only lead to increase in the price of that glass of changaa.

THE CENSUS

So the census has come and gone. Everyone has something to say. The politicians are all focused on the tribe. If we listen to them, am sure they would all like the whole thing canceled and everyone re-counted. The political debate is now focused on constituencies, counties etc. One would be forgiven for thinking that the Census only purpose is to determine how to share power. The census, such as the one conducted by the state, is a best an estimate of the number of people using scientific tools. It can not lead to an exact number. As we move forward, the census should be complemented by a comprehensive system of registration of births, deaths and proper recording of important statistical data. I would like the politicians to now focus on how we can provide clean water, toilets and generally use the information we have to better the lives of Kenyans

NHIF Contributions

I have this long time friend who has condition that needs constant treatment and monitoring. Unfortunately, he cant be insured because he has a pre-existing condition. Every so often he comes to see me for 1k or so to buy medicine, go for tests etc. He cant afford all his medical expenses on his meager salary. The current NHIF benefit only comes in handy the few times he is hospitalised It is for this reason I support the current NHIF initiative. This guy would be able to go for his tests and get his drugs when he needs them. I am willing to fork out the extra 1k to see that I do not have to budget for my friend's emergency needs.

Vetting of Judges and Magistrates

The turning point for the judiciary came when Chief Justice Chunga made the "For What, About what ....." speech. The current provisions in the Constitution is a culmination of the failure of the failure by Chunga to recognise that indeed there was a problem in the Judiciary and deal with it decisively. The Gicheru "purge" similarly failed as it was ill conceived and lacked leadership f to follow through reforms that would rejuvenate the Judiciary. Now we have come to the position where the constitutional imperative is that all Judges and Magistrates must be vetted. It is a legal and political process. It must adhere to established principles of law and justice yet the public must be convinced that the process results in a new Judiciary capable of meeting the challenges facing Kenya.