Mondays miscellany [UPDATED]

There will be light blogging as I am out of the country.  A few nuggets from my blogroll though will do for now.

Last week the Constitutional Court of South Africa delivered a landmark decision on corruption. Pierre de Vos has an excellent digest of the decision. A majority of the Court held that the Constitution imposes an obligation on the state to establish and maintain an independent body to combat corruption and organised crime. While the Constitution does not in express terms command that a corruption-fighting unit should be established, its scheme taken as a whole imposes a pressing duty on the state to set up a concrete, effective and independent mechanism to prevent and root out corruption. Contrast this with Justice Rawal's decision on the issue of unexplained wealth.

Now that shuttle diplomacy has failed, perhaps the Vice President and the government should spend some little time agitating for the release of Al Amin Kimathi who is in custody in Uganda.   The Supreme Court of India appealed to Pakistan to release an Indian Citizen who has been in custody since 1984.   Just goes to show how some countries value their citizens!

Lord Neuberger calls for open justice and access to justice for the public.  The judiciary must do everything reasonably practical to ensure public access to justice.

UPDATED
Chambers Partners has released it rankings for law firms.   The same old firms top the list and the usual laywers.  The only two women are recognised;  Nazima Malik of Kaplan & Stratton and Michi Karimi of Hamilton Harrison & Mathews Advocates.

Declaration of Wealth for Judicial Officers

I have not been able to post as much due to a heavy workload.

For the first time in Kenya, we have advertised for the position of Chief Justice and Deputy Chief Justice.  In addition to the basic constitutional requirements, the applicants are required, in effect, to disclose their wealth and give evidence of their abilities by for example providing samples of their writings.  According to the advert, applicants must make a “Declaration of income and liabilities as at the time of making the application, using the prescribed forms. For those who are in Government employment, attach copies of returns of declaration of income and liabilities and for those in private practice attach income tax returns, for the last three (3) years.”  

Judicial corruption, as we have experienced in Kenya, has the effect of diminishing people’s faith and trust in the justice process.  Declaration of wealth and financial disclosure is an now an internationally accepted measure to combat corruption and promote transparency. Requiring routine financial disclosures from judges and other judicial officials is a powerful tool in fighting corruption by aiding the discovery and prosecution of corrupt activity and increasing judicial transparency by illuminating potential conflicts of interest. Thus it is important that  full disclosures of wealth be enforced.  The Constitution now provides for values of leadership and public service these include; selfless service based solely on the public interest, demonstrated by honesty in the declaration of public duties; and the declaration of any personal interest that may conflict with public duties.  The full disclosure of one’s material status in asset declaration will fulfill the Constitutional values.

The Constitution and Forced Evictions

 Stalls along the Railway line at Kibera face eviction. Courtesy Amnesty International

Forced evictions of persons living in unplanned settlements and slums is a common feature of urban development.  People living in these informal settlements live at the margins of society; lack of clean water, sanitation, food and education. Under the repealed Constitution, the aggrieved persons had very limited rights to pursue.  The Constitution now has protections for persons living in informal settlements against forced eviction.    

The case of Susan Waithera Kariuki & Others vs Town Clerk, Nairobi City Council & Others Nairobi Petition Case No. 66 of 2010 (Unreported)(eKLR) is illustrative of the broad reach of the Constitution in ensuring the protection against forceful and arbitrary evictions.   The petitioners sought a conservatory order to restrain the respondents from evicting them or any of the residents in the areas known as Kaptagat village along Kaptagat road within Kitisuru location, Dam Village at Kabete Veterinary Research within Kitsuru location, Ndumbuini village along Kapenguria/Fortsmith Roads within Kitsuru location, Maasai Village, Consolata on Kurema road off 2nd Parklands Avenue, Highridge within Parklands location, Kabete Native Industrial Training and Development (NITD) in Kabete, all being informal settlements, pending determination of their petition.   In the said petition, the petitioners stated that they were bringing these proceedings on their own behalf and on behalf of thousands of poor villagers living in the said areas. On 29th October, 2010 officers  from the Nairobi City Council delivered notices to the resident of these informal settlements requiring them to vacate the premises within 24 hours of the notice.   They argued that the respondents owe them a duty of respect, protection and fulfillment of their right not to be deprived of their means of livelihood, access to reasonable sanitation, adequate housing, freedom from cruelty, inhuman and degrading treatment and the right to uphold and respect of their dignity. All these rights and freedoms being protected by the Constitution. They also contended that the notices issued to them fell short of the Constitutional benchmark of being reasonable as they are being given hours to vacate from premises where they have lived for over four decades. 

In a ruling delivered on 4^th March 2011, Justice Musinga stated, “Kenya should develop appropriate legal guidelines on forced eviction and displacement of people from informal settlements so that if people have to be evicted from such settlements the act is done without violating people’s constitutional rights and without causing extreme suffering and indignity to them. It is apparent that the requirements set by the United Nations of the High Commissioner for Human Rights relating to forced evictions as quoted hereinabove have not been put in practice in this country. These are sound legal principles which, in my view, ought to be applied in our constitutional interpretation in respect of people’s right to adequate housing. The State has a positive obligation under Article 43(b) of the Constitution to adopt and implement a reasonable policy, within its available resources, which would ensure access to adequate housing over time.”

The learned judge relied on the landmark case of the Constitutional Court of South Africa  GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA vs. GROOTBOOM AND OTHERS where the court held that, to qualify as ‘reasonable’, State housing policy must;  be comprehensive, coherent and effective; · have sufficient regard for the social economic and historical context of widespread deprivation; have sufficient regard for the availability of the State’s resources;  · make short, medium and long term provision for housing needs; · give special attention to the needs of the poorest and most vulnerable; · be aimed at lowering administrative, operational and financial barriers over time; · allocate responsibilities reasonably, adequately resourced and free of bureaucratic inefficiency or onerous regulations; · respond with care and concern to the needs of the most desperate; · achieve more than a mere statistical advance in the numbers of people accessing housing, by demonstrating that the needs of the most vulnerable catered for.   

The judge concluded by stating that “I strongly recommend formulation of such a policy in this country. What I have stated hereinabove is sufficient to demonstrate that even though it is important that the first respondent plans the City of Nairobi properly, and that may entail having to evict some people from informal settlements on road reserves for purposes of road expansion. and/or beautification, the Constitutional rights of those people must be respected and given due consideration. The conservatory orders sought herein are well deserved. The petitioners shall remain in occupation of their informal settlements pending hearing and determination of their petition. The respondents shall bear the costs of this application.”

Justice Musinga has thrown the gauntlet to the Government of Kenya and local authorities.  They must come up with comprehensive policies and schemes to deal with the problems of informal settlements.   This is what the Constitution demands.

Words of Wisdom from the Disciplinary Committee

The Advocates Disciplinary Committee established under the Advocates Act (Cap 16 of the Laws of Kenya) is a statutory body established to enforce and uphold professional ethics and standards.  Previously, the Committee used to hear complaints in private but now sits in public and its decisions are available for public scrutiny. So here are  some quotes from recent decisions handed down by the Committee.

Re Amos Kathuri Mugambi  DC 57/2010

"The respondent also failed to three letters written to him by the Advocates Complaints Commission. Advocates are under an obligation to cooperate with disciplinary agencies like the Complaints Commission so that client grievances maybe addressed expeditiously. It is misconduct to fail to attend to the letter."

Re Consolata Ngondi-Houghton – DC 200/2009

"The respondent in this matter acted as an advocate for the investment company and as a director and investor in the same company. In fact, the capacity of parties to the transaction was not often clear…This situation inevitably leads to a conflict where judiciary relationships imposed in different capacities coincide. The situation ultimately leads to a confusion of roles and serious conflict of interest which would expose the advocate to serious liability particularly where the advocate fails to clearly spell out to the investors her role in the transactions. The matter would have been avoided if the advocate had properly defined her role in the matter to her investor……."

Re John Mutakha Kangu & Paul Chapia Onduso DCC 127 of 2009

"It is the duty of advocates constituting the firm to communicate clearly to their client, in the event of a separation. It cannot be assumed that the client will know where his file has been taken after separation….. Failing to communicate to their client the fact of separation, both advocates must take responsibility for failing to keep the client informed of the process of his care."

Re Charles Muoki t/a (M Muoki & Company, Advocates DCC No. 107 of 2008

"We should point out that, in responding to a complaint of failing to account,  an advocate ought to demonstrate that he kept the client informed of the status of the case at all times, that any monies he received on behalf of a client were paid into his or his law firm’s client account in accordance with the provisions of rule 4 of the Advocates (Account) Rules and that all amounts due to the client were duly handed over or, ultimately, that they are still held in the client account. Although the Advocates (Accounts) Rules do not give time limits for the payment, it is expected that this will be done within a reasonable time taking into account all circumstances."

Re George Masese DCC NO. 16 of 2008

"As a caution Advocates must think out properly and take extreme case before swearing affidavits and taking up litigation against fellow advocates in suspicious and unworthy circumstances. Even is such litigation is taken out, caution should never be thrown out of the window to the extent that suspicious allegation and unprofessional words like dishonest were flossed around against fellow advocates. The profession will be thrown into dispute to the detriment of everybody."

Re Ben Njau Kayai DCC NO. 293 of 2007

"When an advocate has a first meeting with his client, he should ideally discuss the issue of professional fees as well as walk the client through the legal process relative to his case. Some clients habour unrealistic expectations of what and advocate can achieve for them, and from our experience, a good number of complaints of professional misconduct are lodged by such clients."

Miscellany

Post of Chief Justice and Deputy Chief Justice advertised

The post of the Chief Justice and Deputy Chief Justice have now been advertised.  This is unprecedented int he history of Kenya.   The Judicial Service Commission has set itself high expectations from members of the public. Apart from the formal constitutional and statutory requirements,  the candidates "must have demonstrated to a high degree of professional competence, communication skills, fairness, good temperament, making good judgments in both legal and life experiences, and commitment to public and community service."  As part of the application, the applicant must provide five samples of any writing including but not limited to judgments, scholarly writings or any legal writings the applicant has authored.    Demonstration of financial propriety is also required by providing declarations of income and tax returns for those in private practice. 

The JSC has not indicated whether the candidates will be subjected to public interviews.   It would be a great disservice to Kenyans if they were not so subjected.   

The important lesson for lawyers aspiring for high judicial office is to be squeaky clean from day 1!

Orders against Insurance Company discharged*

On Tuesday, the court discharged an order issued by Justice Gacheche in June last year where she effectively stayed all and any proceedings against Directline Insurance Company.  Justices Ombija and Mwilu will give their reasons on notice.  The case Blueshield Insurance Company is still pending a ruling before Justice Gacheche on whether the Law Society of Kenya should be joined to the suit.  The effect of the orders issued by the court was that the two companies were immunised from the provisions of the Motor Vehicle (Third Party Risks) Act.  Court proceedings could not go on against their insured's, execution of decrees were stopped, demand letter were ignored and judgments not honoured causing suffering to many Kenyans.   The problems  of  third party motor vehicle insurance in Kenya are well known and since the collapse of United Insurance Company Ltd, Stallion Insurance Company Ltd, Lakestar Insurance Company Ltd and Standard Assurance Company Ltd, the Government has not taken any concrete and comprehensive steps to tackle the issues that affect this part of the industry.