The JSC has spoken! [UPDATED]

Perhaps I assumed an overly legalistic or "positivist" approach to my interpretation of "consultation."   So legalities aside, if there is anything we should learn from the Constitution, which we gave ourselves, is that we cannot do things the old way.  Thus, the Constitution goes to great lengths to tell us what values we must espouse to make Kenya a better and greater nation.    These values ought to permeate our very being and particularly those who make decisions on our behalf.   Article 10 tells us some of these values and principles of governance, which are applicable in the current situation, participation of the people, transparency and accountability.   Hence the Judicial Service Commmission is right to state that, " It is our view that in order to give the process of appointing judicial officers legitimacy, public confidence, ownership and acceptance by the people of Kenya, the JSC must play an integral role in the process."   If the public or a substantial section of the public lose confidence in the process of nominating our first post promulagation law officers, then we may as well say the the new Constitution is still born.

On another note, the fact that the Judicial Service Commission came out with a strongly worded statement today, is a sign that we expect a robust judiciary in future.  It is also interesting that the Attorney General, the Government Chief Legal Adviser was present.  This comes as a section of members of parliament prepare for battle.

*The Commission on the Implementation of the Constitution has also declared the judicial appointments unconstitutional.   The CIC has stated that the Judicial Service Commission must be involved in the selection of the Chief Justice.

Its still a Men's World!

 Lawyers at the Cockar Commission that investigated the sale of the Grand Regency Hotel. 

Courtesy of  the Nation.

Not so long ago  FIDA called for the inclusion of women in the consideration of persons to be appointed Chief Justice.  This came after the LSK proposed an all male only list to hold the high office of Chief Justice.   The women proposed include Nancy Baraza, Jamila Mohammed, Joyce Majiwa, Justice Martha Koome, Justice Mary Angawa, Violet Mavisi, Wambui Njogu, Prof. Patricia Kameri Mbote and Justice Kalpana Rawal.   The President has now nominated men for the three top positions in the legal system.   One would not be wrong to comment, "Jobs for the Boys."

A writer once stated that, "the legal profession structures powers relations between groups and classes by shaping the rules and laws that open or limit opportunities without resort to force, making it the quintessential male power role." The profession has formal and informal control mechanisms that limit who social and political diversity of who gets admitted, who does what and who progresses to the next level.   In this respect, women and  minority or disadvantaged social groups face substantial hurdles in making progress in the profession.    It is not difficult to see why women are conspicuously missing from these three appointments.

According to the Law Society of Kenya the number of women on the roll of advocates is  2,677 out of a total of 8,579 on the roll.  (871 have their Gender undeclared!).   While these numbers show a great disparity, I can state without fear of contradiction that there over the last 15 years there has been noticeable parity in terms of women being admitted to the universities to study law and those being called to the bar.  The increase in numbers has not yielded equivalent  increase in power and influence.

Justice Effie Owuor  and Justice Joyce Aluoch were pioneers for women in the Judiciary.  Justice Owuor was the first female High Court Judge and Court of Appeal Judge  in Kenya.  Her career ended with the judicial radical surgery in 2003.  Justice Aluoch joined the bench in 1974  as a magistrate became a High Court Judge in 1993 and thence to the Court of Appeal in 2007.  She was appointed a judge at the ICC in March 2009.  Apart from being pioneers, their judicial careers were unexceptional and their prominence perhaps came from the fact that they were pioneers and they lasted  so long!

After the departure of Justice Aluoch, the Court of Appeal has no female judges out of total of 11.  The High Court has 17 female judges and 26 male judges.   Out of a total of 350 magistrates, there are 144 female magistrates.  The Registrar is a woman while the Chief Court Registrar is a man.  There are no female kadhis out of the 16 so far.   According to the Article 172 of the Constitution, the Judicial Service Commission shall be guided the promotion of gender equity in performance of its work.  It is expected that the JSC would work toward gender parity in future appointments.  It is also likely that the Deputy Chief Justice shall be a woman.

The Nairobi Law Monthly November 2010 edition published a list of the 50 top influential lawyers in Kenya.    According to the editor, "This is the first time Kenya Lawyers are being rated on the index of power, prestige and influence.."   What is not surprising is that  in the top 50 there are only  6 women;   Martha Karua, MP for Gichugu and declared 2012 Presidential Candidate, Amina Mohamed, PS Ministry of Justice and Constitutional Affairs,  Dorothy Angote, PS Ministry of Lands,  Njoki Ndungu, former Committee of Experts member and nominated MP, Agnes Murgor, Company Secretary East Africa Breweries and Mary Wangari Wamae, Company Secretary Equity Bank.   It is interesting to note that apart from Martha Karua who had a background in litigation, the other women influence comes from holding position in Government or blue chip companies.

Litigation, in my view has never been friendly to women.   My first two years of practice were spend defending running down cases in courts all over the country, Kithimani to Migori,  Hamisi to Iten,  Maua to Voi.  The road were terrible, the accommodation horrendous not to mention the hostility from local counsels and magistrates who saw Nairobi Advocates as infringing their turf.  This discouraged many female advocates from taking up employment in some of the larger firms.  In fact some firms were quite clear that they could not employ women as their work would suffer.   Thus  a smaller proportion of my female colleagues took up the kind of litigation that would prepare them for big stuff. It is then not surprising that we rarely see women in the front row defending the "big" criminal cases or election petitions.

How do women stack up in private practice? Consider this list from what are considered some creme de la creme law firms in Kenya. These firms are at the apex of the power structures, political and economic, in the country.  Sample the following;

Anjarwalla & Khanna Advocates  12 partners, 4 women.

Hamilton Harrison & Mathews  9 partners, 1 woman.  All female associates.

Walker Kontos Advocates  7 Partners, 2 women.

Iseme Kamau & Maema Advocates   6 Partners, 2 women.

Muriu Mungai &  Company Advocates  5 partners, 1 woman.

Mohamed Muigai Advocates  5 partners 1 woman 

Ochieng Onyango Kibet &  Ohaga Advocates   6 male partners.

Coulson Harney   4 partners, 2 women.

Kaplan & Stratton Advocates  15 partner, 5 women. 

Again the numbers are heavily tilted toward the men.  A cursory look at the websites will show that most of the women who are partners are below the age of 40 and are specialists in conveyancing and commercial practice.   I would really like to know how many of these women are actually equity partners.

I am yet to see a comprehensive study on the status of women in the legal profession in Kenya.  I think LSK, FIDA and like minded organisation would do well to commission one as a first step dealing with the barriers faced by women in the legal profession.

*  Just a note.   The Chief Justice and the Attorney General of Ghana are both women.

Consultation and Approval

Article 24 and 29 of the Sixth Schedule to the Constitution requires that the President in making an appointment to consult the Prime Minister subject to approval of the National Assembly.  The Prime Minister has rejected the nomination of the Chief Justice, the Attorney General, the Director of Public Prosecutions and Controller of Budget  and termed it as a Constitutional Crisis because he was not consulted.  The President, through the Government spokesman insists that there was consultation.

According to Black’s law Dictionary (8^th Edition), Consultation means, “1. the act of asking the advice or opinion of someone (such as a lawyer). 2. A meeting in which parties consult or confer.”    Consultation does not mean consent  or veto or concurrence.   If the Constitution or the National Accord and Reconciliation Act required a veto by the Prime Minister, nothing would have been easier than to say so in clear terms.  In any case, any legislation giving the Prime Minister a veto over the President's decision would have been patently unconstitutional.   It is clear from the Constitution that what is required is consultation and nothing more.   To take the argument a little further, I may add the law requires approval of the National Assembly.  Approval is an affirmative action unlike consultation.  If the consent was required from the Prime Minister, then the word "approval" would have been used instead.

This kind of issue does not lend itself to judicial resolution because the most the Court can do is day is to probably direct His Excellency to consult the Prime Minister before making the appointment.  The next day at Harambee House the two meet over Chai and Mandazi to discuss the appointments and have the following conversation.

Kibaki:  Good Morning, Prime Minister, I have a list of 10 names for Chief Justice.  Can I have your comments.. 
Raila:  I think Visram is not the best.  Blah Blahh.....
Kibaki: Who do you have in mind?
Raila:  Justice Kihara.
Kibaki:  I see.  Let me consider. I will sleep over the matter.

At 7.00 pm, the President releases a statement that he has nominated Justice Visram as Chief Justice.  Can one really argue that the Prime Minister was not consulted?

The politics of this are of course, a different matter.

The Nominated; Alnashir Visram, Githu Muigai and Kioko Kilukumi

Justice Alnashir Visram

It is now official, the President nominated Judge of Appeal, Alnashir Visram as the Chief Justice to replace Justice Gicheru, Professor Githu Muigai as the new Attorney General and Kioko Kilukumi as the new Director of Public Prosecutions.  I wrote about Justice Visram and Professor Githu here.

According to his official biography, "Justice Visram has established himself as a creative judge with a flare for innovative approaches to judicial resolution. During his tenure, he has presided over several landmark cases that broke new ground in legal jurisprudence in Kenya. In the Olympic case of Eric Keter, Justice Visram found that the Kenya Amateur Athletic Association (KAAA) had unlawfully excluded the 400 metres hurdler from the Olympic team thereby violating his fundamental rights and ordered that Keter be included in the Kenyan team. Soon thereafter, he ordered Kenya Power & Lightning Company (KPLC), to restore electric power to a business consumer. Justice Visram laid down the rule that a monopoly like KPLC had a greater duty of care to its customers and could not disconnect power supply at its whim."  

In my view the Chief Justice must have the grand vision that will see through the transformation of the judiciary which is something, Justice Gicheru did not have or did not communicate well enough to the public.    The public will need to know that the Judiciary is on their side. On this score, my jury is out there.  But one advantage,  he will have is a fairly strong and probably assertive Judicial Service Commission to assist him.  By virtue of his position as the Attorney General, Githu will be a member of the JSC and an excellent addition at that.

The Chief Justice must be a solid jurisprudential leader.  The great Chief Justices have solid intellectual capacity displayed in judgments that set precedents within and outside the country.  Sadly and I think there is a general consensus in the profession, that on the jurisprudential scale, the performance of our highest court has been mediocre.  Once again, the Justice Gicheru failed in this respect.   During his tenure, he very rarely presided over the court when and asked why, he stated that landmark cases were rarely presented to the court for him to hear.  In this respect, I think Justice Visram may acquit himself.  He had some good judgments in the High Court. 

Professor Githu's challenge as the Attorney General will be to steer the ship of  Implementation of the Constitution, a role clearly imposed on that office by the Constitution.  As a Constitutional lawyer, grounded both in academia and practice, and a Commissioner of the Constitution of Kenya Review Commission (CKRC), his knowledge of the nooks and crannies of the Constitution will put him in good stead.   The ICC process and matter related thereto will also occupy a substantial part of his time.  No doubt he will bring to bear his experience as the UN Rapporteur on Racism and Xenophobia to this position.

The Office of the Director of Public Prosecutions (DPP) has now, under the Constitution been separated from that of the Attorney General.   The office is the repository of the state  powers of prosecution of criminal law and in this respect he also has power to direct the Inspector General of Police to investigate any offences.   Kioko Kilukumi has been in private practice and is known in the Constitutional and Criminal Law practice circles where he is considered one of the leading advocates.   He was also involved in the Starehe Election Petition and the Kajiado North Election Petition.   In the case of  Wehliye vs Republic [2005] 1 KLR 837, Mr Kilukumi successfully challenged the right of the Attorney General to enter a nolle prosequi without challenge by the court.   This is now the case in the present Constitution.    Kilukumi's challenge will be establish the office of the DPP as an independent entity capable of resiting pressures from the political class.   He will be the key to fighting impunity.

The rest is Politics!

Police too have Human Rights!

 Kenya Police

Over the weekend I watched Citizen TV and there was condemnation of Human Rights groups for failing to condemn the killing of police officers by thugs.  I think this a case of drawing of false equivalence.   The police are agents of state and have the monopoly of force hence the killing of persons, who in law are presumed innocent, by the police is a clear contravention of the social contract between the people and the state.   The Police Act and the Police Force  Standing Orders go to great lengths to detail how lethal force should be applied.  The police are trained specifically for this purpose.  This is not to say that the killing of the police is  justified or should not be condemned.  The police as state organ has the entire panoply of state resources at its disposal to be able to protect the human rights of police officers including the use of force.   Human Rights organisations on the other hand are organisations of limited remit, created by law and can only deal with matters their constitutive documents or budgets allow. 

That said, I condemn the killing of innocent persons by the police and I also condemn killing of police officers by thugs.

Death of the Art of Trial Advocacy and other ruminations

Rumpole

Death of the Art Trial of Advocacy

A fortnight ago I lamented about the death of the commercial court and the fact that it is now impossible to have cases heard.   This is a general problem and one of the deleterious effects of this the loss of the art of trial advocacy.   Trial advocacy skills involves arguments before the judges, legal research, a thorough knowledge of the facts of the case, the law applicable, the precedents bearing on the case, good anticipation of the arguments of the opponent, a deep insight into the strengths and weakness of one’s case and the ability to think on one’s feet should the unexpected question come from the bench.   Advocacy like any other skill is learnt through observation and constant practice.   Trial advocacy merges  the writing skill and the oral presentation skill. 

It is unfortunate that may lawyers being admitted to the bar undergo pupillage without ever having attended a full High Court trial and with written submissions gaining currency the skill of making an argument and persuasion is lost.  And because of the collapse of litigation generally, many senior advocates have stopped active practice leaving a huge gap in the  transmission of knowledge and skills.  Apart from watching  Rumpole of the Bailey, as a pupil I had the privilege to be taught by one of the leading advocates in the country and I was lucky to see how trials were conducted and appeals argued in open court. 

My suggestion to young lawyers is to go  court and observe some of our advocates in action; Pheroze Nowrojee, Bill Inamdar, Fred Ojiambo, Githu Muigai, Njoroge Regeru, George Oraro and  Ochieng Oduol.

Acquisition of Land

I think the Minister for Lands is on sound legal footing. Under Article 40 of the Constitution, the Government's right to acquire land is subject to;

i. Due process being afforded to the land owners.  This is carried out in accordance with an Act of Parliament, that is, the Land Acquisition Act (Chapter 295 of the Laws of Kenya).

ii. Acquisition of land for a public purpose or in pubic interest.  Expansion of road is an accepted public purpose for land acquisition.

iii.  prompt payment in full of just compensation.

The debate between the owners of properties along is not whether the Government can acquire land to expand road (a public purpose) if it wishes, but whether it make sense as a policy in view of the large and substantial investments made along Mombasa Road. 

On Friday, Justice Musinga issued an order stopping demolition of the buildings along Mombasa Road pending service and the hearing of the application.  Interestingly, the matter is not filed by the property owners but by Kenya Union of Journalists.

I do not think that the acquisition of land has anything to do with the freedom of the media as asserted by the Standard.

Private Prisons

It is reported that G4S seeks to run prison services on behalf of GoK.  Quite apart from the fact that G4S has a chequered past in Kenya, I think this is a BAD IDEA.   I just some things should remain in Government hands.

Commission for Implementation of the Constitution

CIC has began is work by asking the Minister of Justice to withdraw the already published bills on the judiciary.    Part of the mandate of the CIC is set out under the provisions of section 5(6) of the 6th Schedule to the Constitution includes inter alia, monitoring, facilitating and oversseing the development of legislation and administrative procedures required to implement the Constitution and to co-ordinate with the AG, Law Reform Commission in preparing for tabling in Parliament legislation required to implement the Constitution.  This is indeed a heavy task considering that the legislative schedule has been delayed by Parliament.   The result of this is that there is a risk that the CIC, AG and LRC may become a conveyor belt churning out legislation in order to meet deadlines.

I hope the CIC will implement procedures that will encourage transparency and public participation in their work.  The CIC has already approved two bills; the Judicial Service Bill and the Vetting of Judges and Magistrates Bill.  It is not clear what concerns the CIC had nor the changes made.  It would be good and consistent with the Constitution that values transparency and public participation to provide a window for public comments.    I also think that CIC should use reference groups from specific sectors to vet bills coming up for consideration.   A website should be their first order of business where all the bills should be posted for comment.    I note that the National Police Service Bill 2010, National Police Service Commission Bill 2010, Independent Policing Oversight Authority Bill 2010 and  Private Security Industry Regulation Bill and National Coroners Service Bill 2010 are to be fast tracked yet  these crucial bills are not officially available to the public for circulation and comment.

Judicial Service Bill, 2010 and the Appointment of Judges

 President Kibaki and appointed judges

The most important task allocated to the Judicial Service Commission is the appointment of judges.  How this is conducted will set the stage for the rehabilitation of the judiciary. If badly handled, the implementation of the Constitution will be severely undermined.  Article 166 of the Constitution provides that that Chief Justice, Deputy Chief Justice and all the judges shall be appointed in accordance with the recommendation of the Judicial Service Commission.   Article 172(2) imposes of the JSC the obligation to perform its duties guided by competitiveness and transparent processes for the appointment of judicial officers and other staff of the judiciary.   Someone once said that transparency and accountability are not an act of charity that anyone who holds a public office can deny at will. They form the cornerstone upon which a democratic state is built.  The Task Force on Judicial Reforms  in its report presented to the Minister of Justice in July, 2010  discussed some of the problems inherent in the system under the repealed  Constitution.  These issues are also discussed here. Accountability and transparency are national and principles of governance set out in Article 10(c) of the Constitution.  The Judicial Service Bill, 2010 attempts to operationalise transparency and accountability in the appointment of judges. 

It is generally accepted that the international best practice in regard to the appointment of judicial officers is to be found in the Commonwealth in the Latimer House Guidelines which provide as follows; 

Judicial appointments

Jurisdictions should have an appropriate independent process in place for judicial appointments. Where no independent system already exists, appointments should be made by a judicial services commission (established by the Constitution or by statute) or by an appropriate officer of state acting on the recommendation of such a commission.

The appointment process, whether or not involving an appropriately constituted and representative judicial services commission, should be designed to guarantee the quality and independence of mind of those selected for appointment at all levels of the judiciary.

Judicial appointments to all levels of the judiciary should be made on merit with appropriate provision for the progressive removal of gender imbalance and of other historic factors of discrimination.

Judicial appointments should normally be permanent; whilst in some jurisdictions, contract appointments may be inevitable, such appointments should be subject to appropriate security of tenure.

Judicial vacancies should be advertised.

The Judicial Service Bill, 2010 meets these standards by providing a fairly rigorous process for the appointment of judges which is set out in the First Schedule of the Bill.  

One issue I wanted to flag is whether judges should undergo interviews in public.  Section 11(5) of the First Schedule states that all interviews shall be conducted in private.    Private interviews negate the whole system of transparency and accountability.    Opening candidate interviews to the public gives people an insight into the process and a sense of the candidates being considered for the bench.   Candidates  for high judicial office must explain and justify themselves to the public which they pledge to serve.   Surely, there is nothing wrong with that.  After all Article 159 is clear that judicial authority is derived from the people of Kenya.  The people of  Kenya have the right to see and scrutinize for themselves to the kind of people being appointed to the bench.  Opening interviews to the public allows people to determine for themselves whether the Commissioners act in a manner that ensures that the best candidates are selected.  Open interviews, are in my view, the apex of transparency.  The Commission will of course have the responsibility of providing safeguards to the candidate and third parties.

* Here is a good article on transparency and accountability of appointing judges by Justice LTC Harms of South Africa.

Affirmative Action

Sometime ago, the Minister of Finance announced that  part of the Economic Stimulus package funds had been allocated to develop one secondary school in each consitutency as a Centre of Excellence.   I am  yet to hear what has happened to these centres of excellence. This and like efforts will go a long way in dealing with the disparities within the education sector and promoting quality education countrywide.

I just want to touch on the threatened legal action by those affected by the Ministry of Education directive on quotas for the admission students to public secondary schools .  The support for this position is said to be grounded on Article 27 of the Constitution provides that every person is equal before the law and has the right to equal protection and equal benefit of the law.   Article 27(4) specifically prohibits any form of discrimination either direct or indirect on the basis of race, sex etc.    

Government policy though is well grounded on the provisions of the Constitution. Article 27(6) and (7)  impose on the state the obligation to take legislative and other measures, including affirmative action programmes and polices designed to redress any disadvantage suffered by individuals or groups of individuals because of past discrimination.   In addition, we have Article 43 which provides for the right to education.  Articles 54, 55 and 56 empower the state to take special action to promote the rights of specific groups namely; the disabled, minorities and marginalised groups.  I think these provisions as a whole underpin he Government's action.

The ministry directive is just a short term measure.   The solution lies in more and substantive investment in the education sector.

Tuesday Miscellany

This is a fast developing story.   Yesterday, if press reports are to be believed Professor Githu Muigai and Justice Paul Kihara Kariuki are the leading contenders for the post of Chief Justice.  Today,  Professor Muigai is not on up for consideration but Justice Kihara and A former High Court Judge who was Chief Justice  of Gibraltar and the Cayman Islands.   This well known judge is Justice Derek Schofield.   

Justice Schofield rose to prominence in Kenya when he defied the Moi Government in the Stephen Mbaraka Karanja case which I blogged about here. When Karanja disappeared,  his family applied for an order of Habeas Corpus.  Justice Schofield ordered the police to produce him in court, but was told that police could not comply because Mr Karanja had died in police custody that he was shot while he allegedly tried to escape. The judge demanded that police produce his body.  After police exhumed 19 bodies at the Eldoret municipal council cemetery in search of the victims body but it could not be found.  The judge demanded an explanation from the Commissioner of Police and the Director of the CID but before his order could be complied with, he was removed from the case and transferred to up-country by Chief Justice Cecil Miller.   He promptly resigned and left the country.

 

The controversy surrounding his dismissal is reported here, here and here. His dismissal was upheld by a majority of the Privy Council.   Whether his dismissal as Chief Justice of Gibraltar will be considered as a negative remains to be seen.

The principles, whose duty it is to consult and nominate the Chief Justice, at least accept that there needs to be a credible process and acceptable nominee for the post of CJ that will give the Kenyan Judiciary some credibility needed to make the argument that that we can manage our legal affairs should the "Hague" issue be dealt with locally.

Who is on the Supreme Court?

 Milimani Law Court

The Supreme Court established under  Article 139 of the Constitution shall consist of the Chief  Justice, Deputy Chief Justice and five other judges.   Under Article 24 of the Sixth Schedule of the Constitution, the new Chief Justice shall be appointed by the President in Consultation with the Prime Minister and with approval of the National Assembly.  Under Article 166, the Deputy Chief Justice shall be appointed by the President upon the recommendation of the Judicial Service Commission and approval of the National Assembly. The five judges appointed upon recommendation by the Judicial Service Commission.  Under section 21 of the Sixth Schedule, the Supreme Court is to be established within one year.

Apart for the Chief Justice and Deputy Justice whose appointment is expected to be at least political given the nature of appointment, the rest of the member of the Supreme Court will be recommended by the JSC.  The JSC composed of the Chief Justice, the Attorney General, Justice Riaga S. C. Omolo, Justice Isaac Lenaola, Hon. Emily Ominde,  Titus J. K. Gateere, Anthony Muheria, Christine Kevin Abungu Mango, Florence Muoti Mwangangi and Ahmednassir Abdullahi, is now fully constituted.

The JSC will not be blind or immune to public political realities or legal imperatives.  Article 27(8) which mandates that the State shall take legislative and other measure to ensure provides not more than two thirds of an elective or appointive body shall be of the same gender. Thus the court ought to have at least two women.  I suspect that if the Chief Justice is a man, the deputy shall be a woman.   The Court must also represent the face of Kenya and I expect that various constituencies will lobby, formally and informally, to be represented on the Supreme Court.

One of the strengths of the Supreme Court will be  mix of persons serving on the court.   The court should be composed of serving Judges of the Court of Appeal and High Court, distinguished academics, legal of practitioners of varied background whether in private or public service.   One of the difficulties that will be encountered is persuading first class practitioners to take a diminution in income and join public service.  With this in mind I present my top candidates in no particular order of preference.   I would hasten to add that among these, a Chief Justice ought to emerge.

 

Justice Riaga Omollo

He is the senior most judge of the Court of Appeal.  His value lies in his ability to be the link between the past and the future.  He was recently elected the representative of the Court of Appeal judges to the Judicial Service Commission.  He is considered forceful and one of the brightest minds on the court.   As the senior most judge he has been involved in the most political decisions for example, the Moi vs Matiba and Kibaki vs Moi petitions and the  Anthony Gachoka contempt case.   He has also authored or presided over progressive decisions like Kivuitu vs Kivuitu on matrimonial property and more recently Godfrey Ngotho Mutiso vs Republic where the Court of Appeal declared that the mandatory death penalty was unconstitutional.

As the senior most judge he is a likely contender for the position of Chief Justice but his ascension will be determined whether the politico's want old or new wine.

Justice Alnashir Visram

Justice Alnashir Visram  was admitted to practice law in Kenya in 1973. While in practice he specialised in commercial, corporate and civil law, during which time he represented several insurance companies, banks and multi-nationals.  In June 1999  he was appointed a Commissioner of Assize, and in March 2001, he was sworn in as a Judge of the High Court of Kenya; and in April 2009 as Judge of Appeal.  During his stint in the High Court, he presided over the Civil Division (Appellate Side) where he did a commendable job clearing the backlog of civil appeals.    The fact that he is an Ismaili, is a plus on his side.

Dr Willie Mutunga

Dr Mutunga is a former Chairman of the Law Society of Kenya (1993 - 1995) and former Executive Director of the Kenya Human Rights Commission. He is a former lecturer of Law at the University of Nairobi and a long time crusader for Constitutional Reform.  He was imprisoned in1982-83. 

Dr Patricia Kameri-Mbote

Dr Patricia Kameri-Mbote is an accomplished scholar whose record speaks for itself.  Can she be persuaded to leave her current perch as the founding Dean of the Strathmore Law School?

Justice  Isaac Lenaola

As a young judge, Justice Lenaola would provide the Supreme Court with energy and a youthful face. His judicial experience would no doubt be useful.

Professor Githu Muigai

Professor Muigai has a career that broadly spans the main areas of practice.  He has run a successful law firm, is an academic and has participated in matters of public law and policy, locally and internationally.

Violet Mavisi

Ms Mavisi has a Law degree from the University of Nairobi and a Masters degree from the University of Sussex (England).  She has worked in  the private and public domain as well as nongovernmental organizations, in advocacy work, litigation in human rights and education both in paralegal training and general human rights awareness programmes.  She was vice chairperson of the Kenya National Commission on Human Rights.  She was the Chairperson of the Interim Independent Constitutional Court which acquitted itself very well.  She is also known as a human and women’s rights advocate.

Justice Kalpana Rawal

A woman of Asian origin would no doubt be attractive.  Lady Justice K.H Rawal was appointed High Court judge in 2000 after a long career as an advocate spanning  has 28 years experience in practice as an advocate three of which she spent as an Advocate of the High Court of India and the rest in Kenya. She holds Bachelor of Arts degree, Bachelors and Master of Laws in constitutional and administrative law. 

Florence Simbiri-Jaoko

Florence Simbiri-Jaoko is the current chairperson of the Kenya National Commission on Human Rights.  Prior to her appointment to that position in 2008, she was a lecturer at the Kenya School of law.   She has served as  a Magistrate and a Principal Deputy Registrar of the High Court of Kenya and has extensive experience in judicial and human rights training.

Justice Martha Koome

Lady Justice Martha Koome was admitted to the Bar in 1987. Prior to joining the judiciary in 2003, she was in private practice and was also renowned advocate for gender equality and protection of women’s rights. She served as the Chairperson of the Federation of Kenyan Women Lawyers (FIDA) and was in charge of policy formulation and maintaining liaison with other NGO''s and other donors.

Kathurima M’Inoti

Kathurima M'Inoti is currently serving as the Chairman of the Law Reform Commission of Kenya.  He also served as the Chairman of the Kenya Section of the International Commission of Jurists.  He is a former partner in the law firm of Kamau Kuria & Kiraitu Advocates, Nairobi, where he specialised in constitutional litigation. He also is a former lecturer in the Department of Public Law at the University of Nairobi (1990-1993). 

Nzamba Kitonga

Nzamba Kitonga, S.C., was the  chairperson of the Committee of Experts (CoE) on Constitutional Review. He was called to the bar in 1979 and practiced in Nairobi and Mombasa.  He was elected Chairman of the Law Society of Kenya between 1997-1999. Vice President of the East African Law Society from 1998 to 2000 and the President from 2000 to 2003.  He served as the Vice-Chairman of the Commission of Inquiry into the Goldenberg Affair from 2003 to 2005. He currently serves as the President of the COMESA Court of Justice.

And how can I forget  Justice Paul Kihara Kariuki.

Death of the Commercial Court

 High Court, Nairobi

In terms of litigation, last year was my worst year ever.    Much to my disappointment, and not for want of trying, I only conducted one High Court  trial and this was in the Civil Division at the High Court, Nairobi! The system has ground to a halt.  Litigation now consists of preparing and filing applications under certificate of urgency, attending interparties hearing and convincing the judge that because your matter cannot be reached you will file written submissions in the vain hope that your matter will be reached one day and your ruling will be delivered on time. 

The Commercial Division at Milimani was established when the banks assisted the Judiciary refurbish premises, previously owned by the Ministry of Labour, to accommodate the Commercial Division.  It was anticipated that atmosphere at the Court would lend itself to quick resolution of commercial disputes.   At the time, a major complaint by the banks was the ease with which litigants were able to obtain injunctions to restrain the sale and or realization of securities.    I recall that the first judges at the Commercial Division were Justice Richard Kuloba (now retired) and Justice Ole Keiwua (Court of Appeal).   The two judges handled their work with such efficiency.  During this time Justice Ole Keiwua made a series of rulings regarding interest rates on credit cards that somewhat settled that area of law.   Justice Kuloba was known to dispense swift justice.   Even after the two judges left, the tempo at the Commercial Court was generally a notch above the Central High Court.  Cases proceeded with dispatch and one could be expected to conclude a matter within a reasonable time.   Moreover, the Judges at the Commercial Court were less likely to entertain the dilatory tactics of some advocates to delay and defeat justice.  It was always that the Chief Justice, in choosing judges to preside over commercial matter, would choose those  who had some commercial law experience.   This I must say is no longer the case.   For the largest economy in East and Central Africa, our commercial court is really a disappointment.